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Government of Oklahoma 



• FREDERICK F. BLACHLY, Ph.D., 

a 

Professor of Government at the University of Oklahoma 
Director of Bureau of Municipal Research, University of Oklahoma 
Secretary of Oklahoma Municipal League 


and 


MIRIAM E. OATMAN, M. A. 

Assistant Secretary of the Oklahoma Municipal League 




Harlow Publishing Co. 
Oklahoma City 
1924 


JK1125” 

I ^ 24 

-D ' 

. v*\ 


y- 

COPYRIOHT 1924 BY 
HARLOW PUBLISHING CO. 



JUL 19 i924 

©C1A801649 


/ 




PREFACE (O 

Oklahoma has been a state for seventeen years under 
the constitution adopted by her people in 1907 . The political 
ideals and principles embodied in that instrument as well 
as the methods then adopted for making those ideals and 
principles effective have had time to be tested as to their 
correctness and practicability. As it is only four years 
until, under the present constitution, the people must 
vote upon the holding of another convention, it seems fit¬ 
ting that a rather complete study be made of the govern¬ 
ment of the state as it now exists. 

It will be the purpose of this book to point out in as 
brief a way as possible what those ideals and principles 
were, to describe fully the governmental organization, 
to discuss and criticise both theory and practice in the 
light of existing conditions, and to make recommenda¬ 
tions as to necessary changes. 

Any constitution, consisting as it does of the ideas of 
many men, and involving necessarily many compromises 
among conflicting ideas, can never be regarded as a com¬ 
pletely unified system. Words and phrases in such a docu¬ 
ment, even at the time of its making, had absolutely dif¬ 
ferent meaning and content in the minds of those respon¬ 
sible for its creation and those voting upon it. Through 
pressure of conflicting claims before the courts the mean¬ 
ings of these expressions are made somewhat certain or 
undergo important modifications. Amendments to the con¬ 
stitution along with added court decisions upon them have 
also modified the original instrument. In a constitution as 
filled with statutory law as is the one adopted by Oklahoma, 
it is manifest that ordinary legislative acts will profoundly 
change its original meaning. The legislature in operating 
under the constitution or in carrying out instructions found 


IV 


Government of Oklahoma 


therein has either augmented or limited the original ob¬ 
vious intent of the instrument. Finally, the provisions of 
the constitution, as men and women operate them, are 
continually in the process of change, adjustment and de¬ 
velopment. 

The authors have attempted to give the substance of 
constitutional provisions dealing with each subject, have 
analyzed these provisions in the light of a multitude of 
court decisions, have studied carefully the legislative enact¬ 
ments and court decisions relative thereto and have through 
observation, talks with many state, city and local officials, 
and criticisms and suggestions from experts in various 
fines, tried to find out what the government of the state 
and its subdivisions really is. 

In making criticisms of the present governmental sys¬ 
tem the authors have attempted to face disagreeable reali¬ 
ties as to their state government rather than to $void them. 
They have taken the attitude that the government is not a 
sacred institution but a machine for performing certain nec¬ 
essary social work; if it is not functioning properly it should 
be examined quite as thoroughly as any other machine fail¬ 
ing to work effectively; if the reasons for failure to work 
properly are found, these reasons should be given the widest 
possible publicity; that these causes of failure should be 
discussed as unemotionally as one discusses a poor piece 
of mechanism in an automobile, all to the end that a really 
workable governmental machine may be developed. They 
have tried to eliminate all partisan criticism, have attempt¬ 
ed to see and to state both sides of disputed questions, and 
where criticism has been made have always made concrete 
suggestions for remedying defects. It has been realized 
further that the majority of our defects are not the exclu¬ 
sive possessions of the state of Oklahoma, but are more or 
less common to all states. 

The recommendations and suggestions for change have 


Preface 


v 


been made, therefore, not in the view of the experience of 
Oklahoma alone but from the actual working government 
in many states. Many of them, it is well realized, will in¬ 
volve fundamental changes in the existing constitution. 

No new or startling principles of government have been 
recommended. All of them have been tested and found 
workable, either in other states, the national government, 
or other English speaking countries. The principles of 
government embraced in the recommendations may be 
summarized to be: (a) A greater trust in representative 
government rather than the faith expressed in the present 
constitution in “direct democracy;” (b) a greater control of 
governmental planning by the executive as a means of in¬ 
suring responsibility to the people; (c) the administrative 
functions of the state placed in a few departments under 
the control of the governor as a means of securing efficient 
state administration; (d) establishing a unified court sys¬ 
tem; (e) the entrusting of certain functions now carried 
out ny the county but state-wide in their nature, to the 
state; grouping the remaining county functions in a few well 
coordinated departments under a manager as a means of 
doing away with the present great cost and inefficiency of 
county government; and (f) the placing of the city and the 
county under the administrative control of a local govern¬ 
ment department in place of the combination of excessive 
legal control plus the irresponsible, ineffective control of 
the various unrelated agencies which obtains at the present 
time. 

The extent of the labor involved in preparing such a 
book, as well as its unremunerative nature, made a certain 
amount of cooperation necessary. But while the different 
chapters have been written by several persons, the bool 
stands as a whole, since it has been planned as one unified 


VI 


Government of Oklahoma 


piece of work and the writers have constantly conferred 
with one another in its execution. 

Three other persons have cooperated with the authors 
whose names appear on the title page, in the production of 
this book. Mr. John H. Bass, A. B., J. D., formerly instruc¬ 
tor in the University of Oklahoma and now an attorney 
for the Federal Trade Commission, has written the chap¬ 
ters on the corporation commission, the initiative and refer¬ 
endum, and, with the assistance of Mr. Merrill, the chapter 
on the judiciary. Mr. Maurice H. Merrill, A. B., L. L. B., 
formerly instructor in government in the University of 
Oklahoma and now a member of the Tulsa bar, has contri¬ 
buted the chapters on the legislature, highways, regulation 
of business and labor, the care of special classes, and local 
government. Miss Gladys Dickason, A. B., formerly the 
Assistant Secretary of the Oklahoma Municipal League, 
has written the chapter on the executive in Oklahoma. 

The possibility of error of statement in analyzing a 
complex constitution, laws, numbers of which are far from 
clear, a multitude of court decisions and the daily operations 
of a governmental machine composed of many parts is 
great. The authors have tried to eliminate these errors, 
by thoroughly checking and rechecking one another’s work, 
by comparing carefully the laws of other states where 
a particular law or court decision in Oklahoma seemed at 
variance with the general rules, and finally by consulta¬ 
tion with many of those actively engaged in governmental 
operations, those teaphing government and those connected 
with government research agencies. Their number pre¬ 
cludes detailed mention here, but their suggestions and crit¬ 
icisms have done much to strengthen this book. For all er¬ 
rors, as well as mistakes of judgment, the authors alone as¬ 
sume all responsibility. 

If this work furnishes some informational basis for a 


Preface 


vn 


wide and intelligent discussion of the government of our 
state, and suggests methods which should be considered in 
working for its improvement, the purpose of the authors 
in undertaking it will have been fulfilled. 

Frederick F. Blachly, 
Miriam E. 0 atm an. 


Norman, Oklahoma, 





CONTENTS 


Chapters Pages 

I The Constitution of Oklahoma .... 1 

II The State Legislature. 35 

Maurice H. Merrill 

III The Chief Executive. 71 

Gladys Dickason 

IV State Administration.126 

V The Judiciary .. 158 

J. H. Bass and M. H. Merrill 

VI The Corporation Commission. 187 

John JI. Bass 

VII The Election System.230 

VIII The Initiative and Referendum .... 273 

John H. Bass 

IX The Taxation and Revenue System . . . 305 

X The Funds of the State .. 338 

XI The Funded Debt of the State . . . .376 

XII The Appropriation and Budget System . 387 

XIII Regulation of Business and Labor . . . 401 

Maurice H. Merrill 

XIV Public Health Administration .... 416 

XV Agriculture. 438 

XVI Highway Administration.454 

Maurice H. Merrill 

XVII Education. 466 

XVIII The Care of Special Classes. 504 

Maurice H. Merrill 

XIX Local Government . 513 

Maurice H. Merrill 













XX Municipal Organization. 551 

XXI The Legal Relationship of the City to 

the State. 565 

XXII Administrative Control Over Oklahoma 

Cities. 626 

XXIII Summary and Recommendations .... 655 





GOVERNMENT OF OKLAHOMA 





CHAPTER i 


THE CONSTITUTION OF OKLAHOMA 

For a proper understanding of the constitution and 
government of Oklahoma it is necessary to trace in as brief 
a way as possible the historical background of the state. 1 

HISTORICAL SURVEY 

The territory now embraced in the state of Oklahoma, 
except the three counties known as the “Panhandle,” was 
ceded to the United States in 1803 as a part of the Louisi¬ 
ana Purchase. The “Panhandle” was originally Spanish 
territory, then Mexican, then a part of Texas; but was sur¬ 
rendered by Texas when she entered the Union as a slave 
state, since it lay north of the Mason and Dixon line, north 
of which slavery was not to exist. In 1890 Congress made 
this “No man’s land” a part of the Territory of Oklahoma. 

The history of the area now known as Oklahoma, from 
the date of the Louisiana Purchase until the time when it 
was admitted into the Union, is largely concerned with the 
relations between white men and Indians. The Indian prob¬ 
lem in the present state of Oklahoma had its beginning in 
the early part of the nineteenth century. Five tribes of 
Indians, the Cherokees, Chickasaws, Choctaws, Creeks and 
Seminoles (later called the Five Civilized Tribes) were set¬ 
tled on valuable and extensive lands in Alabama, Florida, 
Georgia and Mississippi. By treaty with the Federal Gov¬ 
ernment, they were to have undisturbed possession of their 
lands and property. The whites, coveting these rich unde- 

T^or a more detailed account, see Alley and Blachly—Elements 
of Government, pp. 209-268. The best and most complete account is 
found in Dr. Roy Gittinger’s The Formation of the State of Oklahoma. 



2 


Government of Oklahoma 


veloped tracts, wished to remove the Indians. The Louisi¬ 
ana Purchase seemed to open a way for a solution of these 
Indian problems. ^ 

In 1808 delegates from the Cherokee Nation asked per¬ 
mission to move into the new territory beyond the Mississip¬ 
pi, and by 1817 the tribe had concluded a treaty with the 
United States, which gave them lands in what is now the 
northeastern part of Arkansas. Later these Indians were 
transferred to Oklahoma. In 1820 a treaty was made with 
the Choctaws whereby they received land that now lies with¬ 
in the boundaries of Oklahoma. This marks the beginning 
of a long continued movement to establish Oklahoma as an 
Indian country. Its boundaries were not exactly defined 
at first, but they became more definite as neighboring ter¬ 
ritories and states were formed out of the great unorgan¬ 
ized lands. By various means, fair and foul, and by sun¬ 
dry treaties, the Five Civilized Tribes of Indians had all 
been moved here by the time of the Civil War and were oc¬ 
cupying almost the whole of what is now Oklahoma. 

At the beginning of the Civil War, the Indians in this 
territory preferred to remain neutral, but, owing to circum¬ 
stances over which they had little control, they were forced 
to take sides with the Confederates. Not only did their 
location naturally place them within the area of the. South¬ 
ern Confederacy, but they were practically abandoned by 
the Federal Government, while the Confederacy directed its 
attention toward securing power over them. Early in 1861 
the Federal troops were withdrawn from the military posts 
in the Indian Territory, with the result that the Confeder¬ 
ate forces moved in and by persuasion and compulsion in¬ 
duced many of the Indians to acknowledge the authority of 
the Confederate States and to ally themselves with the 
South. 

It is impossible to say to what extent the members of 


Constitution 


3 


the various tribes acquiesced in the treaties made by their 
leaders; all of the evidence seems to show that there was 
much division on this point. However, at the close of the 
war the United States took the position that the Indians had 
been traitors, and that in consequence of their bad faith 
the treaties which had been made with them were no longer 
effective. As a penalty for alliance with the South it was 
demanded of the Five Civilized Tribes that they give back 
to the Federal Government the western portion of their 
lands. The Indians, who held many negro slaves, were com¬ 
pelled to abolish slavery and to admit their slaves into tri¬ 
bal membership. Rights of way for the building of rail¬ 
roads were also demanded and the Indians were forced to 
make this concession. 

This move on the part of the United States enabled it 
to rid itself to a great extent of the Indian problem in the 
other western states by bringing the Q avage plains Indians 
and mountain Indians to the western part of the territory. 
The building of the railroads tended to break up the tribal 
organizations of the Indians and also made possible the 
overnight development of the state when “openings” took 
place. Between the eastern holdings retained by their In¬ 
dian owners and the western holdings surrendered by them 
and newly assigned to the plains Indians lay a block of land 
over which no one was given control—an unassigned d’s- 
trict which later became the heart of Oklahoma. 

Several attempts were made to organize the Indian 
country as a territory, but these were unsuccessful for 
many years. Instead of a territorial organization, a gen¬ 
eral council of the tribes in the Indian Territory was ar¬ 
ranged, to control relations among the various tribes, and 
among Indians, freedmen and whites. “It was stipulated 
that the president of the general council should be an ap¬ 
pointee of the government of the United States, and in the 


4 


Government of Oklahoma 


treaty with the Chickasaws and Choctaws he was called the 
‘governor of the Territory of Oklahoma/ This was the first 
use of Oklahoma as a name for the Indian Territory. At 
the same time the consent of the Indians was secured for 
the establishment of a United States court, but it was ex¬ 
pressly provided that the powers of the tribal courts should 
not be curtailed.” 2 

Since the words “Territory” and “Oklahoma” (home 
for the red man) were thus linked together, the opposition 
to one was carried over to the other, and the name Okla¬ 
homa fell into disrepute with the Indians. Gradually this 
name came to be applied to the unassigned district which 
lay between the eastern and western Indian lands. 

Many tribes of Indians were moved into the land which 
had been ceded to the United States by the Five Civilized 
Tribes, and many treaties and agreements were made, until 
by 1879 there were twenty-two separate Indian reserva¬ 
tions in what is now Oklahoma 3 ; but the central district 
was still unoccupied. For some time past white men had 
been desirous of settling in this land, but they had not suc¬ 
ceeded in doing so, although many of them had settled 
among the Indians of eastern Oklahoma. In 1880 it was 
estimated that six thousand white persons were in the res¬ 
ervations of the Five Civilized Tribes, exclusive of railroad 
employees and certain laborers who had been authorized to 
remain by the tribal officials. 4 

The decade from 1879 to 1889 was a period during 
which continual attempts were made to occupy the unas¬ 
signed lands in the central portion of what is now Okla¬ 
homa. For example, in 1880 David L. Payne organized a 
band of settlers and took up land almost in the heart of the 


*Gittinger, Op. Oit. p. 84. 
8 Gittinger, Op. Cit. p. 94. 
“Gittinger, Op. Cit. p. 176. 



Constitution 


5 


Oklahoma District, where he was arrested with eleven com¬ 
panions by United States officers. All were discharged as 
soon as they were removed across the Kansas line, but it 
was only two months until Payne was again arrested in his 
“home” with twenty companions. The United States Dis¬ 
trict Court at Fort Smith, Arkansas, overruled Payne’s 
contention that the Oklahoma District was part of the pub¬ 
lic domain, and held that the district was still a part of the 
Indian country. Payne was fined $1,000, but as the only 
method of collecting it was by civil action and as he had no 
property that could be levied upon, this did not trouble him, 
and he once again returned to his self-appointed task of set¬ 
tling the Oklahoma District. He made further attempts to 
settle the country in the fall of 1880, in 1881 and in 1882. In 
1883 a large expedition of some two hundred and fifty per¬ 
sons under his leadership settled in what is now known as 
Lincoln County, whence after a few days they were taken 
back over the Kansas line. Three or more other expeditions 
were attempted by Payne during this year, with persons 
whom he organized as Payne’s Oklahoma Colony, but all 
were unsuccessful. In 1884, Payne made his last attempt 
to open the Oklahoma District with a considerable armed 
force. Upon his sudden death in November of that year, 
W. L. Couch was selected as leader of the settlers. Under 
his direction nearly four hundred intruders, including a few 
women and children, succeeded in crossing into the Oklaho¬ 
ma District and in establishing a settlement near the present 
site of Stillwater. Col. Hatch, who was sent with a detach¬ 
ment of soldiers with orders to eject this band, very widely 
moved his soldiers to the north of the camp, thus cutting off 
supplies, and the “Boomers,” as the invaders were generally 
called, were soon starved into submission. 

All this agitation for the opening of Oklahoma could 
not fail to have its effect upon Congress, and in 1885 a bill 


6 


Government of Oklahoma 


was passed which authorized the government to negotiate 
for the purchase’ from the Indian owners of any rights 
which they might claim in the Cherokee Outlet and the Ok¬ 
lahoma District. 

By an Act of March 2, 1889, an appropriation was 
passed by Congress compensating the Indians for the rights 
which they claimed in these unassigned lands. The bill 
further authorized the President to open this land to settle¬ 
ment by proclamation. This marked the beginning of a 
succession of bills by which the Government finally obtained 
complete control of what is now the western half of the state, 
and also led up to the so-called “openings,” which resulted in 
the rapid settlement of the western portion cf the territory. 

By various Acts of Congress, between the years 1889 
and 1901, the western half of the Indian country was organ¬ 
ized as the Territory of Oklahoma and one reservation 
after another was opened for settlement. Each of these 
settlements was made by a great rush of settlers, due, 
as Dr. Gittinger points out, to the fact that “The Ind'an Ter¬ 
ritory had become a wedge of the frontier embedded in the 
cultivated and inhabited area. The proximity of this unoc¬ 
cupied country to the railroads made it available for settle¬ 
ment, and the comparative scarcity of free land enhanced 
its value. The ten years of the boomer agitation had made 
known its existence and exaggerated its attractiveness.” 5 

These facts had an important bearing later when the 
state was to frame its constitution and laws, since Oklahoma 
was settled by people from many states, each of which had 
made its own experiments in government. 

The Territory of Oklahoma was established by Act of 
Congress on May 2, 1890. By the terms of this bill the 
new territory embraced all of the Indian Territory except 


'Gittinger, Op. Cit. p. 152. 



Constitution 


7 


the districts occupied by the Five Civilized Tribes, seven 
very small reservations northeast of them, and the Chero¬ 
kee Outlet. On May 15 of that year, George W. Steele of 
Indiana was appointed the first governor of the territory; 
and the first territorial legislature, convening at Guthrie, 
in August, enacted a code of laws. 

By agreement with the Indian tribes, several other 
bodies of land, including the Cherokee Outlet, were opened 
for settlement, so that by 1893 Oklahoma Territory was a 
compact body of land. 

In the meantime, there was a steady drift of whites 
into the Indian Territory, or the eastern half of the present 
state of Oklahoma. In his report for 1886, Robert L. Owen, 
who was in charge of the affairs of the Five Civilized 
Tribes, reported that there were thirty-two thousand whites 
here living in the Indian Territory, of which number there 
were five thousand intruders, and eight thousand miners 
and employees of the government and railroads. Two years 
later he reported that there were thirty-eight thousand five 
hundred outlanders living in the territory of the Five 
Civilized Tribes.* 

This rapid influx of whites into the Indian Territory 
was due to the extensions of the railroads into this territory 
and also to the opening of the coal mines. Towns began to 
spring up rapidly but were without any civil government. 
Life and property became unsafe and the territory became 
the gathering place for “bad men.” By a series of measures 
•Congress attempted to remedy this situation. A United 
States court was established at Muskogee for the Indian 
Territory, which had jurisdiction in civil cases in which 
citizens of the United States were parties, to all amounts 
exceeding one hundred dollars. Since there was no law- 


6 Gitt.inger, Op. Cit. p. 177. 



8 


Government of Oklahoma 


making body in the Indian Territory, Congress provided 
that certain Arkansas laws should be enforced. To this new 
court was given jurisdiction over offenses not punishable 
by death or imprisonment at hard labor; while in more ser¬ 
ious offenses, the nearest district courts of the states border¬ 
ing on the territory were given jurisdiction. Other steps 
were taken to give the territory a complete judicial system.' 

In 1893, Congress established the Dawes Commission 
to prepare the Indian Territory for statehood by clearing 
up questions of tribal membership, making plans for the 
allotment of lands to individual Indians, making provision 
for the sale of surplus land and expediting the breaking 
up of tribal organization. By further acts, Congress au¬ 
thorized this commission to do as well as to recommend; 
and gave it power to allot the lands upon the completion of 
the rolls of tribal membership. Congress also provided for 
the incorporation of towns and established a system of 
schools for rural districts. 

An Act of 1898 abolished the tribal courts and brought 
the Indians under the laws of the Federal Government. Up¬ 
on the passage of an Act of March 3, 1901, declaring all of 
the Indians in the Indian Territory to be citizens of the 
United States, the Five Civilized Tribes ceased to exDt ex¬ 
cept as financial corporations. To quote from Dr. Gitting- 
er, “A million citizens of the United States were in need of 
state government in an area which twelve years before had 
been unorganized Indian Country.” 3 

Six years from this time, after considerable discussion 
as to whether Oklahoma Territory and Indian Territory 
should be admitted separately or as one state, Congress 
passed an Enabling Act (approved by the President on 


7 Gittinger, Op. Cit. pp. 180-188. 
“Gittinger, Op. Oit. p. 195. 



Constitution 


9 


June 16, 1906) providing for the admission of the two ter¬ 
ritories as one state. 

The Enabling Act authorized a constitutional conven¬ 
tion, composed of fifty-five members from each territory and 
two from the Osage Reservation. In the elections to the 
constitutional convention, the democrats were victorious; 
and, when the convention met, the farmer-labor group, 
headed by William Murray, obtained control. This consti¬ 
tutional convention had many difficult tasks before it. 
Two territories very different in population, industrial, 
economic and social conditions, had to be formed into one 
state. The unorganized condition of the Indian Territory 
made the creation of local government a difficult problem; 
moreover, the presence of many negroes in the new state 
meant that Oklahoma had to face not only the Indian prob¬ 
lem but also the negro problem. 

By the sixteenth of July, 1907, the convention had com¬ 
pleted the draft of a constitution for the new state. This 
was submitted to the people on the seventeenth day of Sep¬ 
tember and was ratified by them with a vote of one hundred 
and eighty thousand to seventy-three thousand. By the 
proclamation of President Roosevelt, on November 16, 1907, 
Oklahoma became a state. 

THE CONSTITUTION OF OKLAHOMA 

The Oklahoma Constitution has for its foundation the 
well known general principles of state and national consti¬ 
tutional government in the United States. The first of the 
principles may be said to be the agency theory of govern¬ 
ment or the theory that the people of the state are sovereign 
and that the governments which they set up are merely 
agents under their control and subject to all limitations 
which are placed upon them. The Massachusetts Declara¬ 
tion of Rights summarizes this philosophy: “All power re- 


10 


Government of Oklahoma 


siding originally in the people, and being derived from them, 
the several magistrates and officers of government, vested 
with authority, whether legislative, executive, or judicial, 
are their substitutes and agents and are, at all times, ac¬ 
countable to them.”” 

The Oklahoma Constitution says in its Bill of Rights: 
“All political power is inherent in the people; and govern¬ 
ment is instituted for their protection, security, and benefit, 
and to promote their general welfare; and they have the 
right to alter or reform the same whenever the public good 
may require it * * * 10 ” 

The second principle of state government which is 
adopted in the Oklahoma Constitution is that of the separa¬ 
tion of powers, or the theory that the powers of government 
should be placed in three separate and distinct branches, 
the legislative, the executive and the judicial. The “legis¬ 
lative department shall never exercise the executive and 
judicial powers, or either of them: the executive shall never 
exercise the legislative and judicial powers, or either of 
them: the judicial shall never exercise the legislative and 
executive powers or either of them: to the end that it may 
be a government of laws and not of men.” 11 This idea 
finds its expression in the Oklahoma Constitution in 
the following words: “The powers of the government of 
the State of Oklahoma shall be divided into three separate 
departments: The Legislative, Executive, and Judicial; and 
except as provided in this Constitution, the Legislative, Ex¬ 
ecutive, and Judicial departments of government shall be 
separate and distinct, and neither shall exercise the powers 
properly belonging to either of the others.” 12 

9 Art. V, Part the First, Constitution of 1780. 

10 Art. II, Sec. 1, Constitution of Oklahoma. 

“Constitution of Massachusetts, 1780, Art. XXX, Part the First. 

12 Art IV, Sec. 1, Constitution of Oklahoma. 



Constitution 


11 


The third doctrine common to both state and national 
governments is the doctrine of checks and balances. In 
common with most state constitutions, the Oklahoma Con¬ 
stitution contains, beside the great check and balance sys¬ 
tem inherent in the division of power,s, many other specific 
checks and balances. The election of thirteen state execu¬ 
tive officers acts as a check upon the powers of the gov¬ 
ernor, while the election of the members of the legislature 
and of all judges is intended to check their powers by means 
of popular control. Among the other important checks and 
balances found in the constitution are the veto power of the 
governor, the bicameral legislature, the provision that ap¬ 
pointments made by the governor must be approved by the 
senate, and the reference to the people of all constitutional 
amendments and of certain legislation involving extraordi¬ 
nary expenditures. The constitution not only places many 
specific limitations upon the legislature, but also gives the 
people the important checks upon them of the initiative and 
the referendum. The division of powers gives the courts a 
most important check upon the legislature, in the power 
exercised by them of passing upon the constitutionality of 
legislation. 

The fourth principle of government underlying this 
constitution is that of natural rights. This principle finds 
its expression in the declaration that “All persons have the 
inherent right to life, liberty, and the pursuit of happiness, 
and the enjoyment of the gains of their own industry.” 13 
This provision of the bill of rights is augmented by some 
thirty-two additional sections protecting the individual in 
his life, liberty, and gains of industry. Beside the usual 
provisions found in a bill of rights the Oklahoma Constitu¬ 
tion contains several newer provisions. Private property 

13 Art. II, Sec. 2, Const. Oklahoma. 



12 


Government of Oklahoma 


is safe-guarded by the provision that it cannot be taken or 
damaged for private use, “with or without compensation, 
unless by consent of the owner, except for private ways of 
necessity, or for drains and ditches across lands of others 
for agricultural, mining, or sanitary purposes, in such man¬ 
ner as may be prescribed by law” 14 ; and also by the 
provision that “Private property shall not be taken or dam¬ 
aged for public use without just compensation.” 15 In 
addition to these constitutional prohibitions, the proce¬ 
dure for condemnation is outlined in detail. The constitu¬ 
tion protects the owner by providing that the property shall 
not be disturbed or the proprietary rights of the owner di¬ 
vested until compensation shall have been paid. Another 
limitation upon the right of condemnation is found in the 
provision that “The fee of land taken by common carriers 
for right of way, without consent of the owner, shall re¬ 
main in such owner, subject only to the use for which it is 
taken.” The determination of the character of the use in 
case of condemnation is declared to be a judicial question. 
A rather unusual feature of the bill of rights is the power 
given to the state in respect to the carrying on of business, 
found in the provisions that “The right of the State to en¬ 
gage in any occupation or business for public purposes shall 
not be denied nor prohibited, except that *he State shall not 
engage in agriculture for any other than educational and 
scientific purposes and for the support of its penal, charita¬ 
ble, and educational institutions.” 16 Municipal corpora¬ 
tions are, furthermore, given the right to engage in any 
business or enterprise which may be carried on privately by 
virtue of a franchise granted by the municipality. 17 


14 Art. II, Sec. 23, Const. Oklahoma- 
15 Art. II, Sec. 24, Const. Oklahoma. 

“Art. II. Sec. 31. Okla. Const. 

“This provision is not found in Bill of Rights but 'in Art 
XVIII, Sec. 6. 



Constitution 


13 


An exception to the ancient rule of law that no person 
shall be required to give evidence tending to incriminate 
himself is found in the provision that “Any person having 
knowledge or possession of facts that tend to establish the 
guilt of any other person or corporation charged with an 
offense against the laws of the State, shall not be excused 
from giving testimony or producing evidence when legally 
called upon to do so, on the ground that it may tend to 
incriminate him under the laws of the State: * * *” 18 This 
substantial right is secured, however, by the further pro¬ 
vision that he shall not be prosecuted or subject to any 
penalty or forfeiture on account of anything concerning 
which he may testify or produce evidence. 

Complete immunity from martial law would seem to 
be guaranteed by the provision that “The privilege of the 
writ of habeas corpus shall never be suspended by the au¬ 
thorities of this State.” 19 This provision is strengthened 
by the section: “The military shall be held in strict subord¬ 
ination to the civil authorities.” 20 

Beside containing most, if not all, of the standard Ameri¬ 
can philosophy regarding the state, the Oklahoma con¬ 
stitution contains a good many provisions which are not 
found in the older state constitutions. These provisions bear 
unmistakable evidence of what Professor Dealy calls, “The 
rising tide of direct democracy.” 21 In its direct provision for 
the initiative and referendum, in its direct election of 
nearly all of the chief administrative officers, in its pro¬ 
vision for a direct primary system, in the extraordinary 
number of limitations upon the legislature and in the num¬ 
erous statutory provisions incorporated within it, the con- 

18 Art. II, Sections 21 and 27. 

19 Art. II, Sec. 10, Okla. Const. 

20 Art. II, S-ec. 14. 

21 Pol*itical S-cibnce Review, Feb. 12. 1921. p. 57. 



14 


Government of Oklahoma 


stitution of Oklahoma shows clearly that the people wished 
direct control over their government. The belief in “direct 
democracy” was not at all indigenous to Oklahoma but had 
been growing rapidly throughout the nation and particularly 
in the west and southwest. 

No one of these so-called innovations was the work of 
the constitutional convention. Each of them was adopted 
from some other state. The framers of the Oklahoma con¬ 
stitution only placed in that instrument what was the 
dominant political philosophy of that day, 22 at least, in the 
west and southwest. 

The reason for the development of this philosophy of 
“direct democracy” is not hard to find. For nearly a hun¬ 
dred years there had been an ever growing distrust in re¬ 
presentative government as exercised through state legis¬ 
latures. Legislatures had been branded from one end of the 
land to the other as corrupt, inefficient and unworthy of 
public trust. Various methods of reforming them had been 
tried; subjecting them to many constitutional limitations, 
taking away their control to a very large extent over the 
executive and judicial branches, giving the governor greater 
powers, including the veto power, and taking away the 
power of legislatures over large and important fields of 
legislation. The courts, acting under various federal and 
state constitutional provisions in declaring legislative acts 
null and void, had placed stern limiting hands upon the leg¬ 
islatures. Yet with all these well meaning attempts to hold 

22 The state of S. Dakota had adopted the initiative and ref¬ 
erendum in 1899, Utah in 1900, Oregon in 1902, Nevada in 1904 and 
Montana in 1906. At least twenty-five states had adopted primary 
laws with'n the period from 1900 to 1907, while a good many others 
had adopted such laws even before this time. All of the constitutions 
written immediately preceding the Oklahoma constitution show a 
tendency to restrict the legislature and also to place many statutory 
provisions in the constitution. 



Constitution 


15 


the legislatures in the path of rectitude, they had continually 
gone from bad to worse. 

It was but a logical step for the people to place more 
trust in themselves. 23 It is little wonder, then, that the 
men who framed the Oklahoma constitution, gathered as 
they were from many states, each of which had had bitter 
experience with its legislature, should have drawn up a 
constitution surcharged with disbelief in the legislature 
and filled with the spirit of direct popular control. 

Especial fear and distrust of the legislature were per¬ 
haps further justified by the fact that special interests, 
railroads, etc., had very largely dominated the territorial 
legislature. Many provisions, statutory in their nature, 
were inserted in the constitution for fear that the legisla¬ 
ture would either not frame laws at all on the matters 
covered by them, or would frame laws favorable to these 
special interests. 

The reaction of the people of the United States and more 
particularly of the west and southwest toward the rapid 
concentration of business in the forms of trusts and mon¬ 
opolies also finds expression in the Oklahoma constitution. 
An intense feeling against monopoly which was expressing 
itself throughout the west and southwest in the form of 
bristling laws against the trusts, is reflected in this consti¬ 
tution. The most striking example of this feeling is found 
in Section 32 of the bill of rights, which declares: “Per¬ 
petuities and monopolies are contrary to the genius of a free 
government and shall never be allowed, nor shall the laws 
of primogeniture or entailments ever be in force in this 
State.” 

Other provisions arising from this same attitude are those 

“See article on State Political Reorganization, by Herbert 
Oroly, proceedings of American Political Science Association, 1012, at 
page 122, ff. 



16 


Government of Oklahoma 


requiring railroads to transport one another’s cars, freight 
and passengers" 4 ; requiring oil pipe companies to receive 
and transport one another’s oils or commodities 25 ; pro¬ 
hibiting the consolidation of stock, property or franchises, 
or the leasing or purchase by public utilities of one another’s 
works or franchises 26 ; prohibiting free railway passes, ex¬ 
cept in certain cases 27 ; requiring a two cent passenger 
fare with certain exceptions 28 ; permitting the legisla¬ 
ture to “alter, amend, annul, revoke, or repeal any charter 
of incorporation or franchise now existing and subject to 
be altered, amended, annulled, revoked, or repealed at the 
time of the adoption of this Constitution, or any that may 
be hereafter created, whenever in its opinion it may be 
injurious to the citizens of this State, in such manner, how¬ 
ever, that no injustice shall be done to the incorporators 29 ;” 
prohibiting monopoly and discrimination 30 ; and prohib¬ 
iting the granting of exclusive franchises or of municipal 
franchises for a longer period than twenty-five years 3 '. 
Corporations are excluded from certain privileges and 
immunities guaranteed to natural persons. The con¬ 
stitution provides for searches into the actual operations 
of corporations by explicitly stating that their books, re- 


24 Art. IX, Sec. 3, Okla. Const. 

25 Art. IX, Sec. 4, Okla. Const. 

26 Art. IX, Secs. S and 9. Okla. Const. Sec. 9 was amended 
in 1913, permitting railroads to consolidate. 

3T Art. IX, Sec. 13, Okla. Const. 

’“’See Art. IX, Sec. 37, Okla. Const. It is interesting t o 
note that in 1907 Illinois, Indiana, Minnesota. Nebraska, passed 
statutes fixing the passenger rate of railroads at two cents per mile. 
In an article in the Political Science Review for November. 1909. 
Mr. R. A. Campbell said: “The great tidal wave of railway pas¬ 
senger rate regulation began in Ohio in 1906, swept over the South 
and Middle West, reached its height in 1907, and since then ha* 
been slowly receding.” 

"Art. IX, Sec. 47. Okla. Const. 

30 Art. IX. Sec. 45. Okla. Const. 

81 Art. XVIII. Secs. 5 and 7. Okla. Const. 



Constitution 


17 


cords and files shall be at all times subject to the full visi- 
torial and inquisitorial powers of the state, notwithstanding 
the rights secured to persons and citizens 32 . Finally, a 
corporation commission is established with very large jur¬ 
isdiction and the legislature is given power to enlarge this 
jurisdiction 33 . 

To a more limited extent the new social philosophy re¬ 
garding labor and its rights, which was beginning to make 
itself felt in state legislatures during this period, finds ex¬ 
pression in the constitution. The feeling of organized labor 
that the injunction with its punishment of contempt for 
disobedience was being used by judges without proper hear¬ 
ing and evidence, and that it was being used in the interest 
of capital against labor, undoubtedly gave rise to the pro¬ 
visions regarding contempt 34 . “The legislature shall pass 
laws defining contempts and regulating the proceed¬ 
ings and punishment in matters of contempt; Provided, 
that any person accused of violating or disobeying, when 
not in the presence or hearing of the court, or judge sit¬ 
ting as such, any order of injunction, or restraint, made 
or entered by any court or judge of the State shall, 
before penalty or punishment is imposed, be entitled to a 
trial by jury as to the guilt or innocence of the accused. 


32 Art. II, Sec. 28, Okla. Const. 

33 Art. IN. See Chapter on Corporation Commission.q. 
seq. The Wisconsin Commission of 1905 was the first to be given 
such mandatory powers in respect to equipment and rate-making as 
to substitute administrative control for legislative control. New 
York and Oklahoma established commissions with similar powers in 
1907. See Bass, J., Legal Aspects of Public Utility Regulation, Okla¬ 
homa Municipalities, Feb. 1, 1922, pages 3-17. 

34 It is significant of the feeling that existed - at this time 
against the use of the injunction and of the punishment of con¬ 
tempt of court for disobeying it that the question was taken up in 
the platforms of both political parties in 1908. See Beard. Amer¬ 
ican Government and Politics, 1912 ed. p. 305. 



18 


Government of Oklahoma 


In no case shall a penalty or punishment be imposed for 
contempt, until an opportunity to be heard is given 35 .” 

Other provisions were likewise made in favor of labor. 
A department of labor was created under the control of 
the commissioner of labor, and the legislature was required 
by the constitution to create within the department of 
labor a board of arbitration and conciliation 36 . Eight 
hours were to constitute a day’s work in employment by 
or on behalf of the state or its subdivisions 37 ; the contract¬ 
ing of convict labor was prohibited 38 ; child labor in occupa¬ 
tions “injurious to health or morals or especially hazard¬ 
ous” was prohibited 39 ; the work of children and women in 
mine,s was prohibited and eight hours were to constitute 
a day’s work under ground 40 . The legislature was required 
to pass laws to protect the health and safety of employ¬ 
ees in factories and mines and on railroads 41 . The com¬ 
mon law doctrine of fellow servant was abrogated in¬ 
sofar as it applied to certain employees of railroads, street 
and interurban railways and mines; and the legislature 
was empowered to extend this provision to other classes 
of employees 42 . 

The unsatisfactory relationship obtaining between the 
cities of the various states and the states themselves is re¬ 
flected in a constitutional provision purporting to give 
home rule to cities 43 . As is the case with nearly all of 
the newer provisions of the constitution, this idea was 

35 Art. II, Sec. 25, Okla. Const. 

36 Art. VI. Sec. 20 21, Okla. Const. 

3l Art. XXIII, Sec. 1, Okla. Const. 

“Art. XXIII, Sec. 2, Okla. Const. 

39 Art. XXIII, Sec. 3, Okla. Const. 

40 Art. XXIII, Sec. 4, Okla. Const.* 

41 Art. XXIII, Sec. 5, Okla. Const 

42 Art. IX, Sec. 36. 

43 Art. XVIII, Secs. 3a-3b. 



Constitution 


19 


borrowed from other states, six states having adopted 
one form or another of home rule before it was inserted in 
the Oklahoma constitution 44 . 

Probably the special article in the constitution providing 
for statewide prohibition, which was voted upon separately 
by the people, was not due entirely to the very strong senti¬ 
ment for prohibition which was sweeping the country at 
the time, though it was doubtless influenced thereby. An 
important factor in this case was the requirement of the 
Enabling Act 45 that liquor should be prohibited in the 
Indian Territory or eastern part of the state for twenty- 
one years and thereafter until the people should provide 
otherwise by a constitutional amendment. 

The Oklahoma constitution shows little variation from 
other state constitutions in respect to the organization of 
the state government, except in two points; namely, the 
great amount of space given to the organization of county 
government and the description of counties 46 and the un¬ 
usual detail with which the departments of state govern¬ 
ment are treated. The constitution not only names the of¬ 
ficers who shall head the various departments, prescribes 
their qualifications and provides for the method by which 
they shall be elected, but outlines their duties very fully and 

44 Mc,Ba'in, H. L., Municipal Home Rule, pages 114-115. 

States which had adopted this policy prior to Oklahoma, were Mis¬ 
souri, in 1875, California, in 1879, Washington, in 1889, Minnesota, 
in 1896, Colorado, in 1902, Oregon, in 1906, 

45 Enabling Act, Sec. 3, Second. 

4fi About twenty-five pages, nearly one-fourth of the entire 
constitution, are devoted to the description of counties. Some coun¬ 
ties were left as they were, new counties were created from old 
counties, and all of the Indian Territory was divided into counties 
by the Constitutional Convention; all counties, however, were fully 
described in the Constitution.' It would have made this document 
more compact and more logical if the description of ec-unties had 
been appended as a schedule. 



20 


Government of Oklahoma 


even organizes bureaus and boards within the departments/ 
Several boards and commissions, such as are established 
by law in other states, are in Oklahoma set up by the 
constitution 48 or else the constitution requires the legis¬ 
lature to establish them 49 . The corporation commis¬ 
sion furnishes the best example of a board established by 
the constitution 50 . Not only is it organized by the con¬ 
stitution, but some ten pages, or about a tenth of the en¬ 
tire instrument, are devoted to outlining its powers, juris¬ 
diction and duties, its procedure, the methods of taking 
appeal from its decisions, etc. Such regulation of minor 
details is unusual, except among the latest constitutions; 
and it furnishes a striking example of unwillingness to 
entrust the legislature with matters which were formerly 
thought to fall wholly within its province. 

According to the common practice, the Oklahoma con¬ 
stitution organizes the local governments. As we have al¬ 
ready noted, the constitution created the counties of the 
state and defined their boundaries 51 . It also provides for 
the different kinds of county officers, but permits the leg¬ 
islature to make such changes as it deems wise 52 . The pro¬ 
cedure for creating and altering counties 53 and for the re- 

47 See Art. VI. Okla. Const. 

^Arnong the boards and commissions so established are 
the Board of Agriculture, the Commissioners of the Land Office, 
the State Board of Equalization, the Department of Highways, the 
Department of Labor, a Board of Arbitration and Counciliation and 
the State Board of Education. 

49 Art. V., Sec. 38, lays upon the legislature the duty of pro¬ 
viding for the 'establishment of a State Geological and Economic 
Survey. Sec. 39 of ithe same article provides that the Degislature 
shall create a Board of Health, Board of Dentistry, Board of Pharm¬ 
acy and Pure Food Commission. 

w Art. IX, Oklahoma Constitution. 

B1 Art. XVII, Sec. 8, Okla. Const 

52 Art. XVII, Sec. 2, Okla. Const. 

B3 Ibid, Secs. 4 and 5. 



Constitution 


21 


moval’of county seats 54 is laid down in detail in the consti¬ 
tution. 

Municipal corporations may not be created by special 
laws, but the legislature is given power to provide by gen¬ 
eral laws for the incorporation of cities and towns 55 . 
Detailed provisions are given in the constitution whereby 
a city of over two thousand population can frame its own 
charter, with the provision that it be “consistent with and 
subject to the Constitution and laws of this State 56 .” 

The constitution provides for the primary system in 
municipalities 57 and also for the initiative and referen¬ 
dum in regard to ordinances and to amendments to home 
rule charters 58 . The constitution likewise lays down 
in detail the procedure which shall be followed in the use of 
this “weapon of modern democracy.” 

The constitution establishes the procedure to be follow¬ 
ed by municipal corporations in the granting of fran¬ 
chises 59 . Such corporations are permitted to engage in any 
business or enterprise which may be “engaged in by a 
person, firm, or corporation by virtue of a franchise from 
said corporation 60 .” 

“No grant, extension, or renewal of any franchise or 
other use of the streets, alleys or other public grounds or 
ways of any municipality, shall divest the State, or any 
of its subordinate subdivisions of their control and regula¬ 
tion of such use and enjoyment. 

“Nor shall the power to regulate the charges for public 


“Ibid, Sec. 6. 

65 Art. XVIII, Sec. 1, Okla. Const. 
“Ibid, Sec. 3a and 3b, Okla. Const. 
87 Art. Ill, Sec. 5. 

58 Art. XVIII, Sec. 4a to 4e. 

“Ibid, Sec. 5a and 5b. 

60 Ibid, Sec. 6. 



22 


Government of Oklahoma 


services be surrendered; and no exclusive franchise shall 
ever be granted 61 .” 

No franchise can be granted for a longer time than 
twenty-five years 62 . 

A good many limitations are placed upon the legislature in 
respect to the financial operations of municipal subdivisions 
of the state, such as forbidding the state to loan or pledge 
its credit to any municipality or political subdivision of the 
state 62 prohibiting the legislature from authorizing any 
municipal subdivision of the state to become a stock¬ 
holder in or to lend money to any corporation, association 
or individual 63 , prohibiting the legislature from im¬ 
posing taxes for any municipal subdivision of the state, 
but permitting it by general law to confer on the proper 
authorities of municipal subdivisions the power to as ess 
and collect taxes 64 . 

Many other financial limitations are placed upon munici¬ 
pal subdivisions and their officers, such as the amount of 
ad valorem taxes that may be levied 65 , the requiring of 
a statement in any law or ordinance authorizing the bor¬ 
rowing of money or the levying of taxes of the purpose for 
which the money was borrowed or the taxes levied, and 
forbidding such money or taxes to be used for any other 
purpose 66 , making the receiving by any officer of a mun¬ 
icipal subdivision of interest, profit or perquisites aris¬ 
ing from the use or loan of public money, a felony 67 , 
requiring municipal subdivisions to levy an annual tax to 
provide for the payment of interest, sinking funds and 

61 Art. XVIII, Sec. 7. 

62 Art. X. Sec. 15. ^ 

63 Art. X, Sec. 17. 

64 Art: X, Sec. 20, Qkla ■ ‘Joust. 

66 Art. X, Secs. 9 and 10. 

66 Ibid, Secs. 16 and 1(9, Okla. Const. 

67 Art. X, Sec. 11, Okla. Const. 



Constitution 


23 


judgments 68 and limiting the indebtedness of such sub¬ 
division 69 . 

Amendments to the constitution may be brought before 
the people for ratification or rejection in two ways, 
either by legislative action, or by popular initiative. An 
amendment to the constitution may be proposed in either 
branch of the legislature, and if agreed to by a majority 
of the members elected to each of the two houses, the 
amendment, with the yeas and nays thereon, is entered in 
the journals of each house. It is then referred bv the sec¬ 
retary of state to the people for their approval or rejec¬ 
tion at the next regular general election, except when the 
legislature shall by a two-thirds vote of each house 
order a special election for that purpose. If a majority 
of all the electors voting at such an election vote in favor 
of the amendment, it becomes part of the constitution 70 . It 
will be seen that if any person voting at an election fails 
to vote upon any amendment, this failure to vote counts 
as a vote against the proposition. If two or more amend¬ 
ments are proposed they must be submitted in such a 
manner that the electors may vote upon them separately. 

No convention may be called by the legislature to pro¬ 
pose alterations, revisions or amendments to the constitu¬ 
tion, or to propose a new constitution, unless the law pro¬ 
viding for such convention shall be approved by the peo¬ 
ple on a referendum vote at a regular or special election. 
Any amendments, alterations, revisions or new constitu¬ 
tion, proposed by a convention, must be submitted to the 
electors of the state at a general or special election and 
must be approved by a majority of the electors voting 
thereon before it becomes effective. The question of a 


°Tbid, Secs. 26 and 28. 

69 Ibid. Sec. 26 

70 Art. XXIV, Sec. 1, Okla. Const. 



24 


Government of Oklahoma 


proposed convention must be submitted to the people at 
least once in every twenty years 71 . 

The above article does not impair the right of the people 
to amend the constitution by a vote upon an initiative peti¬ 
tion. Fifteen per cent of the legal voters have the right 
to propose amendments to the constitution by petition. The 
petition must include the full text of the measure pro¬ 
posed. Petitions and orders for the initiative are filed with 
the secretary of state and addressed to the governor, who 
submits them to the people. All elections on initiated meas¬ 
ures must be held at the next general election except when 
the governor orders a special election 72 ; and a majority 
of all votes cast at the election must favor a proposed 
amendment in order that it may be carried. 

An interesting question that has arisen 73 regarding 
initiated amendments, as well as others, is whether or not 
they are self-executing. In other words, does the legislature 
have to vitalize constitutional provisions by laying down 
rules by means of which the general constitutional pro¬ 
visions shall be given the force of law? It has been held in 
Oklahoma that certain amendments, even if made by the 
people, are not self-executing and remain dead until fur¬ 
ther supplemented by legislative action which gives the 
amendments the force of law. Judge Williams, in the case 
of Reardon v. Scales 74 , following Ccoley 75 , gave two criteria 
for the determination of this question: “A constitutional 
provision may be said to be self-executing if it supplies 
a sufficient rule by means of which the right given may 
be enjoyed and protected, or the duty imposed may be 

71 Art. XXIV. Sec. 2, Okia. Const. 

72 Art. V. Secs. 2 and 3, Okla. Const. 

73 Linthicum v. School District, etc., 49 Okla. 48, 149 Pac. 898. 

74 21 Okla. 683, 97 Pac. 584. 

^Constitutional Limitations., 7th ed., p. 121. 



Constitution 


25 


enforced; and it is not self-executing when it merely in¬ 
dicates principles, without laying down rules by means 
of which those principles may be given the force of law.” 
Judge Kane, in the case of Linthicum v. School District, 
would seem to add the criterion of whether or not other ex¬ 
isting constitutional or statutory provisions are sufficient 
to put the law in force. It is entirely possible then, for the 
legislature to defeat the express will of the people by re¬ 
fusing to “vitalize” an amendment passed by them, unless 
within itself it contains sufficient means for its enforce¬ 
ment, or unless other constitutional or statutory provis¬ 
ions make it effective. 

An example of the manner in which the will of the 
people of Oklahoma, as expressed by a constitutional 
amendment, may be defeated because an amendment is 
not self-executing is found in the history of the amend¬ 
ment commonly known as Section 12a. In 1913 the people 
added to Article X of the constitution, Section 12a, which 
provided that “all taxes collected for the maintenance of 
the common schools of this State, and which are levied upon 
the property of any railroad company, pipe line company, 
telegraph company, or upon the property of any public 
service corporation which operates in more than one coun¬ 
ty in this State, shall be paid into the Common School Fund 
and distributed as are other common school funds of the 
State.” 

The legislature consistently refused to vitalize this amend¬ 
ment. An initiated measure vitalizing this section of the 
constitution was rejected by the people themselves in 1921. 

Summary 

We have shown that much of the Oklahoma constitution 
is but the reflection of prevalent American doctrines of 
government; that many of its newer provisions are but the 


26 


Government of Oklahoma 


constitutional embodiment of the newer economic, social 
and political doctrines which were sweeping the country at 
the time of its establishment; and that it shows a great 
distrust of the legislature and a strong belief in the power 
of “direct democracy.” 

In the following chapters most of the significant provi¬ 
sions of the Oklahoma constitution will be discussed in de¬ 
tail. In summarizing the constitution here, therefore, only 
certain noteworthy features will be taken into consideration. 

Little need be said here as to the general American 
political philosophy regarding the state, of which some out¬ 
standing doctrines were stated earlier in this chapter. For 
many years certain of these doctrines have been subjected 
to severe criticism from both theoretical and practical 
standpoints. The doctrine of separation of powers and the 
doctrine of checks and balances have been attacked repeat¬ 
edly on the ground that they have not only failed to bring 
about any particular benefit, but that they have actually im¬ 
peded the work of government. 

It has been pointed out that the complete separation of 
executive and legislative powers gives rise to the anomalous 
situation that, although the governor is elected because of 
his advocacy of certain policies, he has no assurance that 
these policies will be upheld by the legislature and formu¬ 
lated into law. This makes for lack of responsibility on 
the part of the governor and puts the people in the posi¬ 
tion of having selected for their leader one who cannot 
lead except by the bribe of patronage, the compulsion of 
the “big stick,” or a very unusual personality. 

Nothing, perhaps, has so emphasized the need of an or¬ 
ganic relationship between the governor and the legislature 
in our states, as the recent experiments in the making of 
state budgets. The unsatisfactory results of the so-called 
“executive budget” in the various states which have intro- 


Constitution 


27 


duced it, have made it necessary for those who desire to 
see the public business conducted more efficiently to give 
serious consideration to the problem whether there can be 
an effective budget system without a closer relationship 
between the executive and legislative branches 76 . The 
experience of Oklahoma with the “executive budget” will 
be discussed in more detail in a later chapter. 

An important check upon the power of the governor of 
Oklahoma over the state administration is found in the 
fact that he is but one of thirteen popularly elected “exe¬ 
cutive” officers. There is no doubt that the appointment 
by the governor of all executive officers would be a great 
improvement over the present system, as it would bring 
about a centralization of responsibility and a uniformity 
of policy which would make for a much higher degree of 
efficiency than now obtains. Many thinkers que tion the 
value of the bicameral legislature, and the constitutional 
provision that appointments made by the governor shall 
be approved by the senate. 

• It is extremely doubtful whether the faith in “direct 
democracy” expressed by the constitutional convention in 
the provisions providing for popular participation in the 
making and amending of the constitution, in the initiative 
and referendum, in the primary system and in the election 
of practically all officers, has been justified by the almost 
score of years of actual experience under the constitution. 

As will be seen in the chapter on the initiative and ref¬ 
erendum, the people, by and large, have taken little inter¬ 
est in the majority of constitutional questions presented 
to them. It is perfectly evident that the people cannot vote 
intelligently upon Questions involving complex legal, 
economic or administrative subjects, which would demand 


76 See National Municipal Review, Vol. IX, pp. 279-288. 



28 


Government of Oklahoma 


prolonged study from experts before a sound conclusion 
could be reached. Out of forty-one constitutional measures 
voted upon by the people, only nine have become law. 
What is the nature of the nine? With two exceptions 
these were measures regarding which the people had either 
a direct knowledge, a personal prejudice or some sort of 
bias. All the farmers in the state and most other people 
knew about a board of agriculture, which with its amend¬ 
ments was voted on twice. Woman’s suffrage, the location 
of the state capital, the grandfather clause, drunkenness as 
a cause for impeachment, are all propositions on which 
every one has an opinion one way or another. None of 
them require study and research. The other two amend¬ 
ments which the people enacted into law have a most 
interesting history. The amendment to section nine, art¬ 
icle nine, was before the people four times before it was 
passed. This amendment which was consistently backed 
by a few interested parties, both by initiated petitions 
and also before the legislature, had for its purpose the 
granting to railway companies of the right to combine. 
It was finally passed at a special election at which very 
few votes were cast. 

A tax distribution bill has also been before the people in 
one form or another four times. This amendment, known 
as “Section 12a 77 ,’’ provides that all taxes levied for the 
maintenance of common schools of the state upon the prop¬ 
erty of certain public utilities operating in more than one 
county shall be paid into the common school fund of the 
state and distributed as a part of that fund. At a general 
election in 1910 the people voted 101,686 to 43,133 for the 
measure but as it took 123,834 votes to make a majority of 
all the votes cast at the election, the measure was lost. At a 


r Const., Art. X, Sec. 12a. 



Constitution 


29 


special election in 1913 the people voted for the measure by 
a vote of 63,330 to 30,295, and so it was adopted. The 
legislature refused to vitalize it or put it into force; al¬ 
though, according to a supreme court decision, vitalization 
is necessary 78 . In 1915 a bill was proposed by the leg¬ 
islature repealing the amendment. At the primary elec¬ 
tion in 1916 the people refused by a vote of 127,525 to 
76,093, to sanction this repeal. In 1920 the people refused 
to pass an amendment vitalizing this section by a vote of 
162,749, to 179,271. The question may fairly be asked, do 
the people in their collectivity know what they want? 

It is interesting and instructive to inquire into the kinds 
of measures for which the people have voted unfavorably, 
or which have failed to become law by virtue of the fact that 
they did not secure a majority of all votes cast 79 . Ex¬ 
amination shows that a majority of these measures are of 
such a nature as to require study, thought, and a general 
knowledge of government and economics. Evidently where 
the people do not know they vote “no” or else do not vote 
at all. There is also evinced by the vote cast on constitu¬ 
tional amendments, as compared to the vote cast for of¬ 
ficers, a very great lack of interest on the part of the people 
in constitutional measures. This lack of interest and know¬ 
ledge is forcibly expressed by Mr. Justice Moore 80 , when 
he says, “The majority of qualified electors are so much 
interested in managing their own affairs that they have 
no time carefully to consider measures affecting the gen¬ 
eral public. A great number of voters undoubtedly have a 
superficial knowledge of proposed laws to be voted upon, 
which is derived from newspaper comment or from con¬ 
versation with their associates. We think the assertion may 

78 Linthicum v. School District, etc., 49 Okla. 48; 149 Pac. 898. 

f9 See Chapter VIIi; page -. 

80 State ex rel. v. Richardson, 48 Oregon 319. 



30 


Government of Oklahoma 


safely be ventured that it is only the few persons who 
earnestly favor or zealously oppose the passage of a pro¬ 
posed law initiated by petition who have attentively stud¬ 
ied its contents and know how it will probably affect 
their private interests. The greater number of voters do 
not possess this information and usually derive their know¬ 
ledge of the contents of a proposed law from an inspec¬ 
tion of the title thereof, which is sometimes secured only 
from the very meager details afforded by a ballot which 
is examined in an election booth preparatory to exercis¬ 
ing the right of suffrage.” 

If one compares carefully the measures which have failed 
to become law with those that have become law, .several 
striking facts are disclosed. Not a single amendment put 
into operation by the people 81 , except the woman’s 
suffrage amendment, is in any degree progressive. 
Moreover, as a rule it is the legislature and not the people 
who have initiated progressive measures. But almost with¬ 
out exception these progressive measures have been de¬ 
feated by the people. Amendments which sought to es¬ 
tablish the Torrens land title system, to provide aid for 
schools, to establish a state tax commission, to establish 
a literacy test for voting, to provide compulsory compen¬ 
sation in case of industrial accidents, to consolidate the ap¬ 
pellate courts, to reduce the number of jurymen, to provide 
for good roads, and to increase the pay of legislators, were 
all measures progressive in their nature; and all were pro¬ 
posed by the legislature and defeated by the people. 

With the exception mentioned above, the amendments 
put into the constitution by the people have been non¬ 
fundamental in nature—measures which would be statu¬ 
tory law if the already existing constitutional provisions 

R! Il, will be remembered that Section 12a was passed but not vita¬ 
lized, so that it remains inoperative. 


Constitution 


31 


did not make it necessary to include them in the constitu¬ 
tion. No change in the form of government or even in the 
state administration has been made by the people, despite 
the fact that the government of Oklahoma as a machine 
• has never run smoothly. Such facts carry very serious im¬ 
plications. If the people set up a machine for the carrying 
on of their government and yet it cannot be changed, no 
matter how badly it is working, without the vote of a 
people who will either vote unfavorably or else vote not at 
all on measures which present the slightest complications, 
what is to become of good and efficient administration? 

The action of the people in lawmaking as distinguished 
from constitution making, if such a distinction can be made 
under a constitution which is itself filled with provisions 
statutory in nature, has been even less significant than their 
action on constitutional measures. Only one of the four 
bills initiated by the people (that providing for the popular 
nomination of United States senators) ever became a law. 
This was made inoperative by virtue of the seventeenth 
amendment to the federal constitution, which provided for 
the direct election of United States senators. None of the 
initiated measures had any great significance. Is the reason 
that the people do not initiate measures due to the fact that 
the legislature itself passes all the large and significant laws 
necessary for the state? This can hardly be the case, as 
it is safe to assert that there are very important measures 
which the people interested in good government have been 
trying to put through the legislature for years but have not 
succeeded in placing on the statute books. Why do not the 
people then try to enact such laws themselves ? The answer 
can only be given that the people are interested in other 
things; they have no method of finding out the necessity 
of certain laws; the laws affect perhaps only a few people 
of the state, although they affect these vitally, and without 


32 


Government of Oklahoma 


the stimulus of self-interest the general public can seldom 
be moved to action. 

The effect of the referendum vote on the acts of thp leg¬ 
islature has been almost negligible. There has been a ref¬ 
erendum demanded by the people upon only five of the some 
thousands of acts passed by the legislature during the past 
fifteen years, and none of them has been significant. Only 
two of these acts, the mining bill and a bill regulating the 
practice of medicine, have been made inoperative by virtue 
of the efforts of the people. A serious defect in the Okla¬ 
homa constitution is the great amount of statutory material 
contained therein. This makes the constitution so long and- 
complicated that it cannot well be comprehended by the av¬ 
erage person. The possibility that laws may be unconstitu¬ 
tional is greatly increased when the constitution deals in 
minute detail with a great many subjects. This means that 
serious restrictions are placed upon the power of the legis¬ 
lature to act for the welfare of the public. Any large or im¬ 
portant measure may readily fall within a limitation, either 
express or implied, found in the constitution. Economic, po¬ 
litical or social conditions cannot be dealt with effectively. 

The many limitations placed upon the legislature are a 
grave fault of the constitution. These limitations reduce 
the scope of legislative authority and so reduce the 
power of the legislature to deal effectively with new eco¬ 
nomic or social situations as they arise. Because of these 
limitations the legislature cannot act on many matters which 
should fall within its province, otherwise than by proposing 
constitutional amendments. This leaves the problems con¬ 
fronting the state squarely up to the people if anything at 
all is to be done. Such a situation would demand from the 
people much initiative, a keen consciousness of the difficul¬ 
ties to be met, time for investigation and an ability to study 
public questions most profoundly, as well as available ref- 


Constitution 


33 


erence works, and either an education or practical experi¬ 
ence in economics, law, government and administration. 
Without some such fundamental basis no one can pass in¬ 
telligently upon many of the large public questions with 
which the state is confronted. It should be perfectly evi¬ 
dent that such a basis belongs to relatively few in any state. 
Let us not deceive ourselves. The people no more solve 
their political questions correctly by voting upon them than 
they would solve a question in mathematics, chemistry or 
engineering correctly by a mere majority vote. 

Constitutional limitations also break down the sanction 
which laws should have, since no one knows whether a law 
is or is not a law until the courts have decided whether it 
is or is not in conflict with these limitations. This not only 
hinders the efficient enforcement of law, but also weakens 
the respect of the people for law. As is pointed out in a 
later chapter, reducing the power of the legislature 
makes seats in that body unattractive to men of abil¬ 
ity, and thus tends to lessen the caliber of men in the legis¬ 
lature. 

In framing a new constitution, we should return to the 
earlier state constitutions in the United States as examples 
of brevity and simplicity. Only the main outlines of the 
government should be contained in such a fundamental in¬ 
strument, leaving all other organization, as well as the 
duties and responsibilities of officers generally, in the hands 
of the legislature. Few limitations should be placed upon 
the legislative authority and these should be fundamental 
in nature. It is only by such methods that we can escape 
the excess of constitutionalism which hinders and binds us 
far more than it protects us and insures us liberty. 

It is extremely doubtful if a new constitution should pro¬ 
vide for as wide popular participation in government as is 
provided for by the present constitution. With the popular 




34 Government of Oklahoma 

constitutional and legislative record in mind, it is hard to 
see any justification for direct government. Instead of en¬ 
trusting our welfare to those who do not know, those who 
have no basis for passing intelligently upon public ques¬ 
tions and those who are not interested or who if interested 
are concerned only with their own selfish ends, it is much 
better to make every effort to create a legislative body both 
responsible and accountable. 


CHAPTER II 


THE STATE LEGISLATURE 

The legislature of Oklahoma is a bicameral body, the 
two houses being termed, in accordance with American 
practice, the senate and the house of representatives. The 
legislative authority of the state is vested in these two 
houses, subject to the reserved rights of the initiative and 
referendum, which are, in brief, rights retained by the 
people, on petition of a certain percentage of the electorate, 
to vote upon the enactment of a proposed law . 1 

^The senate consists of “not more than forty-four mem¬ 
bers” except that if any county by virtue of its population 
becomes entitled to more than two senators, these addi¬ 
tional senators are to be in excess of the forty-four provided 
for by the constitution. The term of the senators is four 
years, one-half of them retiring every two years . 2 The 
house iof representatives, “until otherwise provided by 
law,” was limited by the constitution to one hundred and 
nine members. The constitutional provisions for the appor¬ 
tionment of members among the counties make their num¬ 
ber variable from session to session, with one hundred as 
the basic figure. The term of representatives is two years, 
and an entirely new house is elected each biennium 3 . 

The only difference in the qualifications required of 
senators and representatives is that the former must be at 
least twenty-five years of age when elected, while the age 
requirement for representatives is twenty-one years. Mem¬ 
bers of the legislature must be qualified electors in their 


‘Const Art. V, Sec. 1. 

‘Const. Art. V, Secs. 0, 9a. 

‘Const. Art. V, Sec. 10. 



36 


Government of Oklahoma 


respective counties or districts and must continue to reside 
in the same during their term of office. Conviction of fel¬ 
ony or expulsion from the legislature for corruption con¬ 
stitutes a bar to membership in either house. A member 
of the legislature may not during his term of office serve 
as an officer of the United States or of the state govern¬ 
ment. 4 5 The enforcement of these provisions is vested 
in the two houses, each of them being “judge of the elec¬ 
tions, returns, and qualifications of its own members.” 

The apportionment of representation in both houses 
among the counties of the state is done by the legislature 
every ten years, subject to the restrictions of the constitu¬ 
tion. Apportionment acts are subject to veto by the gover¬ 
nor just as are other bills, and may be reviewed by the su¬ 
preme court of the state at the suit of any citizen, under 
such rules and regulations as may be prescribed by the legis¬ 
lature. The constitution provides that at each sena¬ 
torial apportionment after 1910 the state shall be divided 
into forty-four senatorial districts, each electing a single 
member. Districts must be as nearly equal m popula¬ 
tion and as compact as possible, and must consist of con¬ 
tiguous territory. Representatives are apportioned among 
the counties of the state in accordance with a rather com¬ 
plicated system of “ratios.” The population of the state 
is divided by one hundred and the quotient so obtained 
constitutes the “ratio of representation” for the appor¬ 
tionment period. Each county whose population is equal 
to one-half of this ratio is entitled to one representative. 
Each county whose population amounts to one ratio and 
three-fourths over is entitled to two representatives. More 
populous counties are given one additional member for 


4 Const. Art. V. Secs. 17-18-19. 

5 Const. Art. V, Sec. 30. 



Legislature 


37 


each ratio above the amount required for two, subject 
to the limitation that no county shall take part in the 
election of more than seven members of the lower house. 
If the population of any county, after deducting from it 
the amount necessary to entitle it to one or more represen¬ 
tatives for the entire apportionment period, is such that 
multiplied by five it amounts to one legislative ratio*, that 
county is entitled to one additional member in one legis¬ 
lative session of the decennial apportionment period. If 
the result of this mathematical gymnastic exercise is 
equivalent to two ration, the county receives one additional 
representative in two sessions, and so on in like man¬ 
ner. A county whose population is insufficient to entitle 
it to one member is attached to an adjoining county to 
form one representative district. No county may be di¬ 
vided in the formation of either senatorial or representa¬ 
tive districts, except to form two or more districts wholly 
within the county. Where counties are so divided, the dis¬ 
tricts must be as nearly equal in population as possible. 6 

The constitution provides that legislative apportion¬ 
ments shall be made at the first session of the legislature 
after each decennial Federal census, and that the districts 
thereby created are to remain unchanged for ten years. 
Pursuant to this requirement, a reapportionment of rep¬ 
resentatives was made by the legislature in 1911, 7 but no re¬ 
apportionment of senators has yet been made. Senators 
are elected at the present time from the thirty-three dis¬ 
tricts originally created by the constitution, eleven of which 
select two senators 8 . 

Just why no reapportionment of senatorial districts was 

6 Const. Art. V, Secs. 9-10. 

7 S, T, 1911. Ch. 123. 

P A thirty-fourth district was created in 1919, S. L. 1919, Ch. 121. 



38 


Government of Oklahoma 


made in 1911 is not apparent, unless the legislators were of 
the opinion that, because of its position in the constitu¬ 
tion 9 , the provision for a decennial reapportionment applied 
to the house of representatives alone. The language of 
the provision, however, clearly indicates the contrary. The 
legislature has also seen fit to ignore the consitutional re¬ 
quirement that legislative districts .shall remain unchanged 
during the decennial period for which they were made, 
and has frequently changed their boundaries. 

Regular sessions of the legislature are held biennially 
in the odd-numbered years. The session commences at 
noon on the first Tuesday after the first Monday in Jan¬ 
uary, unless otherwise provided by law. Special sessions 
may be called by the governor at any t'me, and in these 
sessions the legislature is limited to the consideration of 
such subjects as may be submitted to it by the governor. 
The governor may also call a special session of the senate 
alone 10 . No limit is placed by the constitution on the du¬ 
ration of legislative sessions. However, as the compen¬ 
sation of members is fixed at six dollars per day for 
the first sixty days of the session and is reduced to two 
dollars per day thereafter, the legislators finish the busi¬ 
ness of the session as soon after the expiration of the sixty 
days as is possible. By legislative interpretation only 
actual working days are included in the computation of 
the term for which the larger compensation is drawn, thus 
excluding holidays and Sundays, although such days are 
counted in computing the amount to be drawn by the leg¬ 
islators. A constitutional amendment extending the pe¬ 
riod during which full pay should be drawn to ninety 
days, with the proviso, that new bills might be introduced 

9 See Const., Art. V, Sec. 10b. 

*°Const. Art. V, Secs. 26, 27, Art. VI, Sec. 7. 



Legislature 


39 


after sixty days of the session had elapsed only with the 
consent of the governor, was rejected by the people in 
1920. Legislators also receive the sum of ten cents for 
each mile of “necessary travel” in going to and returning 
from the meeting place of the legislature by the most usual 
route 11 . 

Members of the legislature, while in attendance at its 
sessions, or while going to or returning from the same, are 
privileged from arrest, except for treason, felony, or 
breach of the peace. They may not be questioned in any 
other place for any debate or speech in either house. Leg¬ 
islators may not receive appointments from the governor, 
the governor and the senate, or the legislature during the 
term for which they were elected, nor may they during such 
term be elected or appointed to any state office which has 
been created or the compensation for which has been increas¬ 
ed during that term. They may not be interested during their 
term of office nor for two years thereafter in any contract 
with the state or any of its subdivisions which has been 
authorized by a law passed during such term. 12 

The authority of the legislature extends to all rightful 
subjects of legislation. 13 The constitution specifically 
enumerates a large number of subjects as being within the 
domain of legislative action, but this does not act as a limit 
upon the power of the legislature over matters not in¬ 
cluded in the enumeration. However, the legislature must 
exercise its power subject to the restrictions placed upon 
all the states by the federal constitution and to those re¬ 
strictions which have been imposed by the people in the 
state constitution. 

The constitutional restrictions upon legislation in Okla- 

“Const. Art. V, Sec. 21. 

^Const. Art. V, Secs. 22, 23. 

13 Const. Art. V, Sec. 36. 


40 


Government of Oklahoma 


homa may be classified as follows: first, restrictions de¬ 
signed to protect the rights and liberty of the individual, 
found in the “Bill of Rights” 14 ; second, restrictions speci- • 
fically forbidding the legislature to enact laws upon 
certain subjects or to pass certain types of legislation with 
regard to permitted subjects; third, restrictions upon the 
procedure by which legislation may be enacted; fourth, re¬ 
strictions brought about by the inclusion in the constitu¬ 
tion of many provisions partaking of the nature of or¬ 
dinary law. 

Restrictions of the first type are to be found in Article 
II of the constitution. They include guarantees of the 
rights of life, liberty, and the pursuit of happiness, the pos¬ 
session of property, and the free exercise of political rights. 
Free access to the courts of justice is declared to be the 
right of everyone, and especial safeguards are placed about 
the accused in criminal trials. Many of theoe provisions 
are very general in their terms, and the question as to 
whether any legislative act is in violation of them is a mat¬ 
ter for judicial determination. 

The second class of restrictions is distinguished from 
the first in that they consist of .specific prohibitions of the 
exercise of legislative power in regard to certain subjects, 
and are imposed, not as a protection of the rights and lib¬ 
erties of the individual citizen, but because in the opinion 
of the framers of the constitution the best interests of the 
state as a whole required that these subjects be removed 
from the domain of legislative action. Under these pro¬ 
visions the legislature is forbidden to grant by law exclu¬ 
sive rights, privileges or immunities to any person, corpo¬ 
ration, or association 15 ; and to revive a right of action 


14 Oonst. Art. II. 
15 Const. Art. V, Sec. 51. 



Legislature 


41 


or remedy which has been barred by the lapse of time or 
by law, or after suit has been begun on any existing cause 
of action to take away the cause of action or to destroy an 
existing defense to such a suit. 13 The legislature may 
not release or extinguish the indebtedness or liability of 
any individual or corporation to the state or any of its sub¬ 
divisions, nor may it by law authorize such a release. 17 
Legislative action retiring any officer on pay or part pay or 
making a grant to a retiring officer, or appropriating pub¬ 
lic money for a bureau of immigration is prohibited by the 
constitution. 13 The number and emolument of legislative 
employees may not be increased except by general law, and 
such law may not take effect during the term at which it 
was enacted. 19 Property may not be exempted from taxa¬ 
tion by the legislature except as provided by the constitu¬ 
tion. 20 Many other restrictions of this type may be found 
within the fundamental law of the state. 

In order to guard against improper practices in the 
passage of laws a number of provisions have been inserted 
in the constitution, prescribing the procedure that shall 
be followed by the legislature. A quorum in each house 
consists of a majority of the members, although a smaller 
number may adjourn from day to day and may, by rules of 
each house, be authorized to compel attendance of absen¬ 
tees. 21 Every bill must be read on three different days in 
each house. On final passage a bill must be read at length 
and in order to pass must be voted for by a majority of all 
the members elected to each house. The yeas and nays upon 

“Const. Art. V, Sec. 52. 

“Const. Art. V, Sec. 53. 

“Const. Art. V, Secs. 47 and 48. 

“Const. Art. V, Sec. 40. 

“Const. Art. V, Sec. 50. 

21 Const. Art. V, Sec. 30. 



42 


Government of Oklahoma 


the passage of any bill must be entered upon tne journals of 
the houses" 2 . After a bill or joint resolution has been passed 
by either house it must be read at length publicly. Immedi¬ 
ately thereafter the presiding officer must sign the bill in the 
presence of the house, and the fact of such reading and 
signing must be entered upon the journal. The reading 
at length may be dispensed with by the vote of two-thirds 
of the members present, the vote being taken by yeas and 
nays and recorded in the journal. Bills for raising 
revenue must originate in the house of representatives 
but may be amended in the senate. No revenue bill may 
be passed during the last five days of the session. A 
legislator who has a personal interest in any bill must dis¬ 
close that fact to the house of which he is a member, and 
refrain from voting upon the measure. 25 Every legis¬ 
lative act, other than general appropriation bills, general 
revenue bills, and bills adopting a code, digest, or revision 
of the statutes, must embrace only one subject, clearly ex¬ 
pressed in the title. No law may be revived or amended, 
nor may the provisions of any law be extended, by refer¬ 
ence to the title only. The portion affected must be re¬ 
enacted and published at length. 26 Section 46 of Ar¬ 
ticle V of the constitution contains an enumeration of some 
twenty-eight subjects regarding which it declares that the 
legislature shall not, “except as otherwise provided in this 
Constitution,” pass any local or special law. Section 32 of 
the same article provides that no special or local law may 
be considered by the legislature until a notice of intended 
introduction of the bill, stating in substance its provisions, 


“Const. Art. V. Sec. 34. 
“Const. Art. V. Sec. 35. 
“Const. Art. V, Sec. 33. 
“Const. Art. V, Sec. 24. 
“Const. Art. V, Sec. 57. 



Legislature 


43 


has been published for four consecutive weeks in a weekly 
newspaper of general circulation in the city or county af¬ 
fected by the law and verified proof of the publication filed 
with the secretary of state. Section 59 of this article pro¬ 
vides that no special law shall be enacted where a general 
law can be made applicable. 27 The inhibitions of Sec¬ 
tion 46 and the limitation of Section 32 have been avoided 
so far as the regulation of city and county affairs is con¬ 
cerned by the use of the “principle of classification.” The 
courts have held that the legislature may enact laws appli¬ 
cable to persons or localities of a certain class, that such 
laws if applied throughout the state to all persons or local¬ 
ities of the class specified are general and not special, and 
that population furnishes a reasonable basis of classifica¬ 
tion as between localities 28 . As a result, the session laws 
of every legislature contain numerous measures, applying 
in terms to all cities or counties of a given population, which 
in fact apply to but one. 29 

Additional restrictions upon the power of the legisla¬ 
ture arise out of the fact that the framers of the consti¬ 
tution saw fit to include in that instrument many pro¬ 
visions of the type usually embodied in legislative enact¬ 
ments. Among the most striking examples of such pro¬ 
visions are the articles of the constitution dealing with 

27 The decision of the legislature that a general law cannot be made 
applicable is binding upon the courts. Chickasha Cotton Oil Company 
vs. Lamb & Tyner, 28 Okla. 275, 114 Pac. 333. 

28 The leading Oklahoma case on this subject is Burks vs. Walker 
25 Oklahoma 353, 109 Pac. 544. 

2S For example see the following chapters from the Session Laws 
of 1919: Chap. 116, abolishing superior courts in counties having a pop¬ 
ulation between 19,990 and 20,000; Chap. 117, relating to deputies and 
salaries in counties having a population between 14,222 and 14,248; 
Chap. 267, establishing municipal courts in cities with a population over 
10,000 in counties with a population between 43,000 and 47,000. 



44 


Government of Oklahoma 


the judicial system of the state (Art. VII), with corpor¬ 
ations (Art. IX), and with revenue and taxation (Art. 
X), but many other instances may easily be found. Since 
the constitution is beyond the power of legislative en¬ 
actment to modify, the effect of these provisions is to 
reduce the power of the legislature over the subjects cov¬ 
ered by them, and the more detailed and specific the con¬ 
stitutional provision, the greater is the limitation upon 
the legislature. 

The reasons for the establishment of so many constitu¬ 
tional limitations upon legislation may be summarized as 
follows: first, the American political theory that there are 
certain individual rights which it is neither just nor exped¬ 
ient for the state to abridge without at least as much con¬ 
sideration and discussion as is involved in a constitutional 
amendment; second, a distrust, perhaps well-founded, of 
legislative bodies and a fear that, if unrestrained, they will 
be prone tc disregard the rights of private individuals and 
the welfare of the public; third, a profound belief on the 
part of the framers of the constitution in the wisdom of 
certain policies and certain methods of putting them into 
effect, resulting in a desire to place these policies beyond 
legislative control by making them a part of the constitu¬ 
tion. It may be desirable to place certain limits upon the 
exercise of legislative power. Certainly a very strong case 
can be made out in favor of establishing some fundamental 
individual rights and some primary governmental prin¬ 
ciples beyond the control of transient majorities. Where 
limitations are imposed to the extent that prevails in Okla¬ 
homa, however, the result is not entirely satisfactory. A 
multitude of constitutional provisions concerning the ex¬ 
tent and the exercise of. the law-making power increases 
immeasurably the chances of conflict between the consti¬ 
tution and a statute. Those unfavorably affected by a law 


Legislature 


45 


have always the hope that an appeal to the courts will re¬ 
sult in a declaration that the objectionable statute is void, 
and no law can be definitely considered binding until it 
has met the test of the judiciary. Such uncertainty fosters 
a disrespect for law, and a consequent tendency to disre¬ 
gard it. Moreover, the power of the legislature to deal ef¬ 
fectively with the great public needs is diminished by con¬ 
stitutional restrictions upon its sphere of action. The re¬ 
sult is inefficiency in the state government and a decreased 
quality of the legislature itseli, since men of ability are 
not attracted to .service in an impotent body. Finally, the 
inclusion in the constitution of detailed provisions of a 
statutory character causes delay in the amendment of such 
provisions when changed conditions render a new policy 
desirable. 

The presiding officer of the house of representatives is 
termed the speaker, and is elected by that body. 30 In 
practice, he is the choice of the caucus of the majority 
party in the house, since the two parties nominate their 
candidates for this position in caucus prior to the opening 
of the sesrion, and voting follows strict party lines. The 
speaker occupies the most influential place in the legisla¬ 
ture, and is one of the most important figures in the state 
government. This importance is due to the fact that the 
speaker, in the legitimate exercise of the powers conferred 
upon him, may wield a powerful influence upon the course 
of legislation in the house. As presiding officer, he guides 
the course of debate through the recognition of members 
seeking the floor, and rules upon points of order and parlia¬ 
mentary procedure, subject to the right of the house to 
overrule his decision. All communications to the house 
are made through him. He appoints the members of all 


’Const., Art. V., Sec. 29. 



46 


Government of Oklahoma 


standing committees, although the wishes and opinion of the 
majority party caucus, or of the leading members of that 
party, are given great weight in the determination of com¬ 
mittee assignments. By the exercise of this power, the 
speaker may determine very largely the attitude of com¬ 
mittees toward the bills which they consider. The speaker 
also determines to what committee a bill shall be referred, 
and thus to some degree secures for it either favorable or 
unfavorable consideration. The house also elects a speaker 
pro tempore to preside in the speaker’s absence. Other 
employees, as clerks, (Stenographers, doorkeepers, etc., are 
either elected by the house or their appointment is left to 
fhe speaker, subject to confirmation by the house. 81 

The lieutenant governor is ex officio president of the 
senate. A president pro tempore is chosen to preside in 
his absence. 32 The powers of the presiding officer of 
the senate are more limited than are those of the speaker, 
since he does not have the power of appointing committees 
and the senate procedure is more liberal and independent 
of the chairman’s control. Minor employees are elected by 
the senate 33 . The legislature is not allowed to increase 
the number of its employees nor their compensation dur¬ 
ing the session at which the law providing for the in¬ 
crease was passed. 34 

Approximately one thousand bills are introduced at 
each regular session of the legislature. At special "essions, 
the limitation of legislative action to those subjects recom¬ 
mended for consideration by the governor, tends to keep 
down the number of embryo statutes. The large number 
of bills and the practical limits placed on sessions by the 

31 Bunn Supp. Sec. 8115a, S. L. 1915, Ch. 264. 

82 Const. Art. V, Sec. 28. 

^S. L. 1915, Ch. 264. 

^Const. Art. V, Sec. 49. 



Legislature 


47 


constitution, render it absolutely impossible for each bill 
to receive full consideration by the legislature. This has 
resulted in the creation of standing committees to each of 
which are referred for special consideration the bills deal¬ 
ing with matters within its jurisdiction. In the eighth 
legislature the number of standing committees of the house 
of representatives was fifty-four, of the senate, forty. Be¬ 
sides these standing committees, special committees may be 
appointed if need for them arises. 

In the house, members of committees are appointed by 
the speaker at the beginning of the legislative session. In 
making these appointments he pays a good deal of atten¬ 
tion to the opinion of the leaders of his party in the house, 
as expressed through informal conferences and in the 
caucus. The constitution provides that the senate 
shall elect its standing committees by majority vote.” 
A committee on committees whose membership varies is 
selected by the majority party. In the eighth legislature 
this committee consisted of one member from each of the 
original supreme court districts and two from the state at 
large. The committee on committees prepares a tentative 
assignment of membership on the various committees, tak¬ 
ing into consideration the recommendations of the minor¬ 
ity party in filling the places allotted to it, and submits this 
assignment to the majority caucus. The “slate” as ratified 
by that caucus is submitted to the senate which adopts it 
as a matter of course. 

The standing committees act as the agents of their re¬ 
spective houses for the consideration of bills and resolu¬ 
tions referred to them. Every bill or resolution is referred 
to its appropriate committee in the usual course of proce¬ 
dure, but by unanimous consent, or under suspension of the 


'Const. Art. V, Section 28. 



48 


Government of Oklahoma 


rules, this reference may be dispensed with. Reference to a 
committee is made by the presiding officer. Frequently toe 
author of a bill requests that it be referred to a certain 
committee or committees. Committees have power to 
hold hearings and take testimony concerning bills or reso¬ 
lutions referred to them. The author of a measure 
must be given an opportunity to be heard. The rules pro*- 
vide that a committee report must be returned to the house 
within ten days after the subject matter has been referred, 
unless an extension of time is granted. In practice this 
rule is not followed strictly, but either house may exercise 
the right to call up a measure from one of its committees 
after the expiration of the ten day period. The report of a 
committee is, of course, only a recommendation and is not 
binding upon the house to which it was made. Such recom¬ 
mendations are frequently disregarded, but the tendency 
of both the house and the senate is to accept and follow 
the recommendations of their committees, which, there¬ 
fore, exert a very effective influence upon legislation. A 
place upon one or more of the influential committees is the 
desire of every energetic and ambitious legislator. 

The party caucus, although an unofficial and extra-legal 
institution, often exerts an important control over legisla¬ 
tive action. A caucus is simply a meeting of the members 
of a party in either house for the purpose of discussing and 
determining party legislative policy. Caucus meetings are 
held by the senators and representatives of both parties 
at the beginning of each session. At these meetings the 
party candidates for president pro tempore of the senate 
and speaker of the house are chosen, and the caucus is 
organized by the selection of a chairman and secretary. 
The chairman of the caucus in each house ordinarily be¬ 
comes the floor leader of his party for the legislative ses¬ 
sion and is in charge of the parliamentary tactics of the 


Legislature 


49 


party. Subsequent meetings of the caucus are called from 
time to time as occasion requires. A member attending a 
caucus is considered bound in honor to abide by the de¬ 
cision of the caucus and to support that decision in the 
house. Ordinarily, however, only the most important mat¬ 
ters, or those involving political issues between the par¬ 
ties, are made the subject of caucus action. The caucus is 
often denounced as an organ of partisan political activity, 
and as a means of shackling the independent and consci¬ 
entious performance of their duties which is required of 
legislators by their oath of office and their obligations to 
the people. In practice, however susceptible of abuse, it 
seems to be absolutely necessary as a means of .securing 
party harmony and unity of action upon important issues. 

The process of legislation is based upon the parliamen¬ 
tary practice followed by the lawmaking bodies of Anglo- 
Saxon countries. Each house is given the right to adopt 
its own rules of procedure, subject, of course, to consti¬ 
tutional limitations. 36 The committee on rules of each 
house at the beginning of the session submits rules for 
adoption which are based on those used by previous ses¬ 
sions. The rules as adopted may be amended during the 
session by the procedure prescribed therein, or may be 
suspended on special occasions, by a two-thirds vote. The 
intricacies of legislative procedure make an attempt to 
describe in detail the process of legislation extremely liable 
to error. However, it is believed that the succeeding para¬ 
graphs constitute an accurate account of the general pro¬ 
cedure through which a bill passes in becoming a part of 
the law of the .state. 

Bills may be introduced by any member, and may orig¬ 
inate, with the exception of revenue bills, in either house. 


'Const., Art. V, Sec. 30. 



50 


Government of Oklahoma 


In the house of representatives, a bill, when introduced, 
is read the first day by title only. On the next legislative 
day it is again read by title. At this time amendments to 
it may be offered, but in practice this is never done. The 
bill is then referred to its appropriate committee by the 
speaker, and receives at the hands of the committee the 
consideration previously described. The committee may 
report on the bill as introduced, may propose amendments, 
or may even prepare a substitute bill if it originated in the 
house. If the committee recommends in its report that 
the bill “do pass,” it is printed and placed on the calendar 
as a matter of course. If the recommendation is that the 
bill “do not pass,” it is not printed nor placed on the cal¬ 
endar unless the committee recommends .such action, or 
unless the house orders the bill printed. The report may 
be “without recommendation,” in which case the house 
may and ordinarily does, order that the bill shall be 
printed and placed on the calendar, since such a report in¬ 
dicates that the committee has not given the matter ade¬ 
quate consideration, and is passing the responsibility to 
the house. In case both majority and minority reports 
are submitted by the committee, the bill is read at length, 
and after ten minutes’ debate, equally divided, the ques¬ 
tion is taken as to the adoption of the majority or the 
minority report. 

The next regular step in the process of law making, 
which, however, may be dispensed with and the bill ad¬ 
vanced to third reading and final passage by unanimous 
consent or by suspension of the rules, is the consideration 
of the bill in committee of the whole. The bill is printed 
and placed on the calendar under the head of “general 
order.” In forming the committee of the who^. the 
speaker leaves the chair and calls on some member of the 


Legislature 


51 


house to preside over the deliberations of the committee. 
Procedure in the committee is in accordance with general 
parliamentary law and the rules of the house, so far as 
they are applicable. The procedure is, however, somewhat 
less technical than in sessions in the house. Motions to 
lay on the table are not in order. The motion of the “pre¬ 
vious question/’ which is used in the house to cut off debate 
upon a measure, is not employed in committee of the whole. 
The yeas and nays are not taken upon any question. The 
rule forbidding a member to speak twice upon any ques¬ 
tion except by unanimous consent is not applied to meet¬ 
ings of this committee. The result of these modifications 
is that the committee of the whole is more adapted to the 
discussion and perfection of bills than is the formal session 
of the house, and the general practice is that all bills are 
referred to it. As the close of the session draws near, how¬ 
ever, frequent use is made of the right of the house, to 
advance bills to third reading and final passage without 
reference to the committee of the whole. A bill on being 
considered by this “committee” is. first read at length and 
then is read and considered, section by section. At this 
time amendments may be offered, and in fact any amend¬ 
ments that the house makes will generally be made in 
committee of the whole. Each section, as considered, is ac¬ 
cepted or rejected. Then the question is taken upon the is¬ 
sue of recommending to the house that the bill “do pass.” 
If this vote results in the affirmative, the bill is engrossed 
and placed upon the calendar of the house under the head 
of “third reading and final passage.” 

Third reading and final passage is the last step in the 
passage of a bill by the house. Ordinarily a bill which 
has been acted on favorably in committee of the whole 
has little danger of failing upon final passage, but if the 
division of sentiment is close its enemies may succeed in 


52 


Government of Oklahoma 


winning enough votes to insure its defeat, and it would 
be highly erroneous to say, as is sometimes said, that the 
vote on final passage simply amounts to a ratification of 
the action in committee of the whole. Debate on third read¬ 
ing and final passage is limited to thirty minutes evenly/ 
divided between the friends and enemies of the bill. 
Amendments may not be made, but the bill may, upon 
motion, be recommitted to the committee of the whole with 
instructions to amend in a certain manner. If the bill is 
pasred upon third reading the speaker so announces and 
signs the engrossed copy in open session. 

Procedure in the senate is practically the same as in the 
house of representatives. Some differences in the rules 
of the two houses make for a simpler and easier method of 
transacting business in the upper house, and this is facili¬ 
tated by the smaller size of that body and the greater ex¬ 
perience of its members. 

A bill passed by the house in which it originated is sent 
to the other house for consideration in accordance with the 
same proceduie as applies to the treatment of bills orig¬ 
inating in that house. Each chamber sets aside certain 
days which are to be given over to the consideration of 
measures coming from the other. In case amendments to 
the bill are adopted by the second chamber, the bill as 
amended is returned to the house in which it originated. 
This hours may agree to the amendments or it may reject 
them. If the amendments are rejected, the second house 
may either recede from its amendments or insist upon 
them. If the latter course is chosen, the bill is referred to 
a conference committee of three members from each house 
who consider the points of difference and attempt to reach 
an agreement. If the conference committee adopts a plan 
of agreement, it is submitted to the houses for acceptance 
or rejection. In case one or both houses fail to accept the 


Legislature 


53 


committee report, a second conference committee is ap¬ 
pointed. If no agreement can be reached upon the bill, it 
is lost. 

A bill, having been passed and agreed upon by both 
houses is enrolled, i. e. written out in longhand, and af¬ 
ter comparison with the original by the committee on 
engrossed and enrolled bills, a joint committee of seven 
members from each house, is reported back to the houses 37 . 
This must be done within three days from the pas¬ 
sage of the bill. The bill is then signed by the presid¬ 
ing officer of each house in open session. The consti¬ 
tution provides that the bill shall be read at length prior 
to .such signing, but by a two-thirds vote this may be dis¬ 
pensed with, and generally is. 38 

Bills passed by both houses and signed by the presid¬ 
ing officers are transmitted to the governor for his sig¬ 
nature by the committee on engrosred and enrolled bills 38a . 
If he fails to approve of a bill, he may veto it, that 
is, return it with his objections to the house in which 
it originated. Resolutions requiring the assent of both 
houses are also subject to veto. If a vetoed bill is re¬ 
passed by a two-thirds vote of each house, it becomes a 
law in spite of the governor’s objection; otherwise it is 
lost. If the governor fails either to sign or veto a bill 
within five days after it has been submitted to him, the 
bill becomes a law without his signature, unless the leg¬ 
islature has in the meantime adjourned, thus preventing 
the return of the bill. In such a case the measure is lost un- 

3T In practice, the enrollment of a bill is done by the clerical force 
and under the supervision of the committee members of the originating 
house, without assistance from the other chamber. 

^Const. Art. V, Sec. 35. 

38 aThis procedure is that prescribed by the rules. In prac¬ 
tice the bill is delivered by a messenger from the house in which 
the bill originated. 



,54 


Government of Oklahoma 


less approved by the governor within fifteen days after 
such adjournment 39 . The governor may veto items in 
appropriation bills . 40 However, a bill which simply appro¬ 
priates a lump sum of money for a certain purpose, with pro¬ 
visions specifying the different items for the distribution of 
this sum, contains but one item, in the meaning of the consti¬ 
tution, and therefore, the governor may not veto any of the 
items of disbursement . 41 As to whether the governor has the 
power to reduce items in an appropriation bill without dis¬ 
approving them in toto, no decision has yet been ren¬ 
dered in this state. The holdings in other states having 
similar constitutional provisions are in conflict 4 a . 

No law may become effective until ninety days after 
the adjournment ©f the session of the legislature at 
which it was passed. Laws “carrying into effect pro- 


3y Const. Art. VI, Sec. 11. 

40 Const. Art. VI, Sec. 12. 

“'Regents of the State University v. Trapp, 28 Okla. 83, 113 Pacific. 

910. 

41a When a bill has been enrolled, signed by the presiding officers 
of the senate and the house, approved by the governor, it is conclu¬ 
sively presumed to have been passed in accordance with all of the 
constitutional requirements as to procedure, and in the form in which 
it was enrolled. The courts will not then look to the 1 gislative jour¬ 
nals in order to impeach the enrolled bill. A. T. & S. F. R. Co. v. State, 
28 Okla. 94, 113 Pac. 921; Coyle v. Smith, 28 Okla. 121, 113 Pac. 944; 
McNeal v. Ritterbusch, 29 Okla. 223, 116 Pac. 778. As to whether this 
rule would be applied to those matters which are by the constitution 
expressly required to be entered upon the journals, the court in the 
above cases has expressly refused to indicate its opinion. The entire 
rule has been severely criticized as tending to open the door to fraud, 
irregularity and the disregard of constitutional restrictions in the en¬ 
actment of laws. On the other hand, if the courts may search the legis¬ 
lative journals to determine the validity of statutes, it adds another 
element of uncertainty as to what the law really is. especially where 
so many and such detailed restrictions as to procedure are imposed 
upon the legislature as are found in our constitution, and apparently 
this argument has seemed the better to the Oklahoma court. 



Legislature 


55 

visions relating to the initiative and referendum,” gen¬ 
eral appropriation bills, and emergency measures are 
exceptions to this rule. Emergency measures are “only 
such measures as are immediately necessary for the pres¬ 
ervation of the public peace, health, or safety.” 42 

Laws providing for the grant of franchises or licenses for 
a term of more than one year, or for the purchase or 
sale of real estate, or for the renting or encumbrance of 
real property for more than one year, may not be de¬ 
clared to be emergency measures. Subject to this re¬ 
striction, the existence of an emergency is a matter for 
legislative determination, and a declaration by the leg¬ 
islature that an emergency exists is binding upon the 
courts. 43 Emergency measures may be vetoed by the 
governor, and a three-fourths vote is required to over¬ 
ride this veto. 44 Laws to which the emergency clause has 
been attached take effect immediately upon approval by the 
governor, or upon repassage over his veto. 45 For this rea¬ 
son the clause is frequently used, even in cases where no 
reasonable person could believe that an emergency really 
exists. 

Lawmaking is not the sole function that is placed up¬ 
on legislators by our state constitution. There are a 
number of activities which do not pertain strictly to the 
making of law which are assigned to the legislature of 
Oklahoma. These include the impeachment of state offi¬ 
cers, with the accompanying power of investigation, the 

"Const. Art. V., Sec. 58. 

43 In Re Menefee, et al., 22 Okla. 365, 97 Pac. 1015; Oklahoma 
City y. Shields, 22 Okla. 265, 100 Pac. 559; Brown v. State, 3 Okla¬ 
homa Criminal, 475, 106 Pac. 975. 

"Const. Art. V, Sec. 58. 

"Norris et al. V. Cross, 25 Okla. 287, 105 Pac. 1000. 



56 


Government of Oklahoma 


canvassing of election returns, and the confirmation by the 
senate of certain gubernatorial appointments. 

“An impeachment is the prosecution, by the House of 
Representatives, before the Senate, of the Governor or 
other elective state officer, under the Constitution, for 
wilful neglect of duty, corruption in office, drunken¬ 
ness, incompetency, or any offense involving moral turp¬ 
itude committed while in office.” 40 Impeachment of 
the governor and other elective state officers for the 
misconduct stated above is provided for by the consti¬ 
tution 4 '- 49 . The charges are preferred by the house of 
representatives, while the senate acts as the court of 
impeachment before which the case is tried. The chief 
justice of the supreme court of the state, or an associate 
justice, presides over the senate during impeachment 
trials. In case of the absence or disqualification of all 
members tof the court, or if a member of the court is 
being impeached, the senate chooses its presiding officer 50 . 
A two-thirds vote of the senators present is necessary to 
conviction, and the only punishment which may be im¬ 
posed is removal from office 51 . However, impeachment 
does not bar a prosecution for crime in the state courts, 
based on the transaction which formed the subject of the 
impeachment. Impeachment procedure, so far as it is 
not prescribed by the constitution, is subject to the reg- 

"S. L. 1915, Ch. 131, Sec. 5. 

47 Const. Art. VIII, Sec. 1. 

District judges and members of the legislature are not subject 
to impeachment. Maben v. Rosser et al. 24 Okla. 588, 103 Pac. 674. 

49 By a precedent established by the senate in 1921, an offense 
“involving moral turpitude” not connected with the official duty of 
the accused person does not constitute a basis for impeachment pro¬ 
ceedings unless he has (first been tried and convicted of the offense 
in an ordinary court. 

“Const. Art. VIII, Sec. 3. 

sl Const. Art. VIII, Sees. 4 and 5. 



Legislature 


57 


ulation of the legislature, and is provided for by an act 
passed in 1915 52 . 

Impeachment is a very unsatisfactory and extremely 
inefficient method of dealing with incompetent, immoral, 
or corrupt officials. Five impeachments have occurred 
since statehood, two of which have resulted in convic¬ 
tion. The procedure is cumbersome and difficult to set 
in motion. There is, too often, a tendency to base im¬ 
peachment charges on political grounds, and the trials 
are equally subject to partisan influence. The institu¬ 
tion of impeachment was indispensable when ministers 
and judges were the creatures of a divine right monarch 
and the legislature was the only popular element of the 
government. In a state where democratic control ex¬ 
tends to all public servants and the doctrine of separa¬ 
tion of powers is observed, it is useless at its best, and 
when used as a weapon of partisan warfare it becomes 
subversive of the common good. Responsibility for of¬ 
ficial mir conduct could be much better enforced through 
prosecution in the ordinary courts, with the provision 
that conviction in such a case should automatically re¬ 
sult in removal from office. 

The legislature is invested with the duty of canvassing 
the returns of the elections for all elective state officers. 
This is done at a joint meeting of the house and senate 
immediately after the regular session convenes. In the 
unlikely event of a tie vote, the legislature, by joint bal¬ 
lot, chooses one of the tied candidates to fill the office 53 . 

While the most important executive officers of Okla¬ 
homa are chosen by popular vote, there are numerous 
minor functionaries, boards and commissions whose ap- 

52 Session Laws 1915, Chap. 131. 

“Const., Art. VI, Sec. 5. 



58 


Government of Oklahoma 


pointment is vested in the governor. Almost without 
exception, the consent of the senate is required for such 
appointments. Senatorial confirmation of executive 
appointments is generally condemned by modern politi¬ 
cal commentators. The points in the indictment against 
it are that it decreases the governor’s responsibility for 
his appointments, and that the senate is tempted to use 
its power to dictate appointments and to control the ad¬ 
ministration. Executive irresponsibility we certainly 
have in Oklahoma, but the control of the senate over ap¬ 
pointments plays but a small part, if any, in bringing 
this about. There have been practically no instances in 
which the senate has refused its consent to the gover¬ 
nor’s nominees, and the alleged tendency on the part of 
that body to dominate the state administration has not 
yet made its appearance here. 

Throughout the United States there is a widespread 
dissatisfaction with the state legislatures. Their ability 
and their motives are alike under suspicion. This dis¬ 
trust of the representatives of the people holds an es¬ 
pecially prominent place in the public opinion of Okla¬ 
homa. Conversations with men and women represent¬ 
ing every class in the state reveal a general feeling that 
for the most part legislators are not all that they should 
be, that the legislature itself is a detriment to the state, 
albeit an unavoidable one, that legislative sessions are 
to be anticipated with foreboding, endured with patience 
and long-suffering, and remembered with relief at their 
close. The prevalence of such sentiments should arouse 
more than mere regret. When the people feel that no 
good can come from the legislature, that it cannot or 
will not cope with the problems of the time, faith in our 
institutions of government will not long endure. When 
faith in those institutions disappears, established order, 


Legislature 


59 


civil peace, security of life and property, orderly social 
evolution, all that supports our material and spiritual 
civilization, are marked for destruction. It, behooves us, 
therefore, to examine the basis of this feeling, to at¬ 
tempt an understanding of the conditions from which it 
springs, and to seek a remedy for those conditions. 

Let it be said first that much of the popular criticism 
of our lawmakers is unjustified in fact. Gross corrup¬ 
tion does not run riot in the Oklahoma legislature. The 
great majority of the members are law-abiding, honest 
and sincere in private life, and there is no sinister al¬ 
chemy in selection to public office that transmutes such 
a man into a corrupt and self-seeking legislator. More¬ 
over, the legislature is not, as it is so often pictured, a 
“do-nothing” body. Whatever we may think about the 
quality of the result produced, we must admit that it is 
the product of strenuous labor. The member who takes 
his job seriously, as most of them do, finds twenty-four 
hours too short a time to do all that the day brings him. 
Committee meetings, caucuses, the preparation of meas¬ 
ures and the study of those prepared by others, visits or 
messages from his constituents, the advances of lobby¬ 
ists of one variety or another, the numerous informal con¬ 
ferences that attend the process of legislation, plus the 
regular routine of the daily sessions all make up a sum 
total of work which it seems no man could accomplish, 
yet many attempt it and succeed to some degree. 

But despite all the good intentions and all the honest 
effort that are devoted to the .work of the legislature, it 
must be admitted that the lawmaking branch of our gov¬ 
ernment, judged by its fruits, falls far short of even that 
degree of perfection to which man's institutions may at¬ 
tain. “Freak” legislation i;s by no means uncommon. Still 
more common is the passage of acts that fail utterly to ac~ 


60 


Government of Oklahoma 


complish the purpose for which they were proposed. Such 
failures may be due either to mistaken policy or to an 
inability to see how a law theoretically correct will work 
in practice. It is nio uncommon thing for one legislature 
to be confronted with the necessity of repealing or 
amending an act of its immediate predecessor. Other 
measures which may be entirely wise and expedient 
in their policy are marred by careless or inexpert draft¬ 
ing. Some of the errors due to this cause are quite 
amusing 51 . More serious are those faults which come 
not from technical errors in language, but from a fail¬ 
ure to choose means appropriate to the end which the 
law is to accomplish. Many of our statutes are entirely 
inoperative, or worse, operate ineffectively and perni¬ 
ciously, simply because of unskilled preparation. 

Another very prolific cause of popular distrust of the 
legislature is the amount of time devoted, both by indi¬ 
viduals and by groups, to “playing politics.” In the best 
sense of the term politics—the attempt to put a certain 
governmental program into effect, or to crystallize that 

54 Following are some examples of such errors: 

The legislature of 1909 referred to the state examiner and in¬ 
spector as the “state examiner and suspector.” See Revised Laws 
1910, Sec. 8119. See note on history of provision. 

“Any person coming under the provisions of this act who shall 
have rendered twenty-five years for women and thirty years for 
men, or more of teaching service in the public schools, ten years of such 
service rendered by women or fifteen years of such service rendered 
by men may have been in public schools outside of the state, who ceases 
to be in 'the employ of the Public Schools of the State shall be entitled 
to an annuity in accordance with the following schedule.” Session 
Laws, 1919, Chap. 79, Sec. 13. 

A bill introduced in the eighth legislature proposed to penalize 
the purchase of concealed weapons 

Chap. 204 of the Session Laws of 1915 makes an appropriation 
for the purpose of equipping immediate sleeping quarters at the state 
school for the deaf. 



Legislature 


61 


program in the form of an issue to be supported or re¬ 
jected by the people—is a necessary and useful part of 
democratic government. When it is perverted into 
unprincipled maneuvering for partisan advantage, or 
into a system of barter by which local or special interests 
are set off against each other, it is fatal to good legislation. 
This is precisely what occurs in Oklahoma. The attitude of 
members toward measures of major importance is deter¬ 
mined by their party tie; the attitude of the party is deter¬ 
mined by the stand taken by its opponent and by its own 
estimate of popular sentiment; once that attitude is deter¬ 
mined, the party’s legislative program tends to become a 
series of attempts to win public approval and to put the 
opposition in as unfavorable a light as possible. The 
merits or demerits of any legislative proposal must be sub¬ 
ordinated to this program. With regard to measures that 
do not have an aspect of political importance, the practice 
of “log-rolling” holds sway. Representatives of districts 
possessing public institutions form a league, offensive and 
defensive. Members who propose local or special bills ex¬ 
change votes and influence. Even the most conscientious 
legislators seem to feel little compunction about voting for 
bills with which they have no sympathy just because the 
author is a “good fellow” whose feelings ought not to be 
hurt, or because previous support of their own pet meas¬ 
ures has imposed upon them an obligation to respond in 
kind. In all this traffic the interests of the public, whose 
agent the legislature is supposed to be, receive scant atten¬ 
tion. Small wonder, then, that the product of this bargain¬ 
ing is so often detrimental to the state. 

Finally, the legislature has failed to face the vital 
problems of the state and to attempt their solution. Leg¬ 
islation relating to subjects that have been topics of public 
discussion, that seriously affect the economic or the moral 


62 


Government of Oklahoma 


welfare of the state, is either not attempted at all, is lost 
in the maze of legislative procedure, or passes one house 
only to fail in the other. Bills for increasing the salary of 
county treasurers, for establishing a session of the county 
court at some ambitious town, or for making some minor 
change in the existing statutes have a good chance to be¬ 
come a part of the law of the land. Remedial or con¬ 
structive legislation of real importance, however, is very 
unlikely to receive serious consideration, still less likely 
to be considered favorably. Yet responsibility to the elec¬ 
torate for this dereliction of duty is not enforced. Talk 
as we may about the rule of the people, there seems to be 
no necessary connection between what the people wish en¬ 
acted and what the legislature actually enacts. Experience 
of such legislative impotence or inertia accounts to a large 
degree for the popular contempt of lawmakers. 

“Freak” or unwise legislation; imperfect drafting of 
laws both as to form and substance; partisan politics and 
legislative bargaining; irresponsibility, weakness, and eva¬ 
sion of vital issues; these are the sins of the legislature of 
Oklahoma. What are their causes; how may they be 
remedied? As a matter of fact, responsibility for this con¬ 
dition can be traced to no single cause; it is the joint 
product of many and diverse influences. These influences 
may be summarized as constitutional limitations, poor or¬ 
ganization and inferior membership. 

As has already been noted, the imposition in the consti¬ 
tution of an excessive number of limitations upon legisla¬ 
tive action tends to break down that body’s efficiency. 
These limitations reduce the area over which the legisla¬ 
ture may exercise authority, and therefore reduce its pow¬ 
er to deal effectively with problems as they arise. By 
throwing the doubt of unconstitutionally over every law, 
they hinder efficient enforcement of such legislation as is 


Legislature 


63 


passed. Finally, by reducing the power of the legislature, 
they make a seat in that body unattractive to many men 
of ability, and thus reduce the calibre of its membership. 
It is to be hoped that in framing our next constitution we 
shall return to first principles, make that document an in¬ 
strument broadly organizing the structure of the govern¬ 
ment and guaranteeing such rights as are deemed funda¬ 
mental, and leave to the legislature its proper task of 
detailed lawmaking. 

Much of legislative inefficiency is due to poor organiza¬ 
tion. The reduction of compensation, after the first .sixty 
days of the session have elapsed, results in a practical lim¬ 
itation of the length of sessions. Sixty days in every two 
years is no adequate time to be devoted to legislation for a 
modern American state. The first thirty days are given 
ove*- almost entirely to the introduction and preliminary 
consideration of measures. Approximately one thousand 
bills—an average of * seven for each member—are intro¬ 
duced in each session. Many of these are hastily and care¬ 
lessly drawn, necessitating careful revision if they are to 
be made laws. The actual passage of bills is, for the most 
part, done in the last month, and by far the greater 
amount is done in the last ten or fifteen days. This results 
in hasty, ill-considered legislation because of lack of time 
to consider each measure fully, and is responsible for many 
mistaken in technique and policy. Moreover, the bicameral 
form of organization encourages partisan politics and irre¬ 
sponsibility. Each house attempts to shift the responsi¬ 
bility for unpopular action or inaction to the other. As a 
matter of fact, the voter, with two plausible explanations 
of the situation urged upon him, becomes bewildered and 
is unable to decide who is to blame. The difficulty of en¬ 
forcing responsibility is enhanced by the fact that the elec¬ 
tions occur ordinarily a year and a half after the adjourn- 


64 


Government of Oklahoma 


ment of the previous session, by which time the issues there 
raised have been forgotten or are but dimly remembered. 

Finally, it must be admitted that the quality of the per¬ 
sonnel of our lawmaking body is not as high as it should 
be. Democracy at its best calls for the supervision and 
control of the general policy of the government by the peo¬ 
ple; it also demands that the people shall entrust the de¬ 
tailed work of the legislation necessary to put that policy 
into effect to representatives who are the intellectual and 
moral leaders of the state. The truth is, however, that in 
Oklahoma the legislature is neither below nor above the 
general level of the citizenship. This means that we en¬ 
trust legislation—a task which requires the highest de^- 
gree of intelligence and character—to a body which is 
of only average grade in those characteristics. It is 
probable that only one-third of the members of any ses¬ 
sion are really efficient legislators. These form the lead¬ 
ers of the assembly, but being in the minority their 
leadership is hampered and curtailed by the less able 
members. This shortage of able members may be traced 
to several causes. Constitutional limitations and infre¬ 
quent and abbreviated sessions have, as we have seen, 
reduced the power of the legislature to deal effectively 
with the state’s needs. Membership in such a body 
does not appeal to men of ability and ambition, and 
they do not become candidates unless impelled by an 
exceptionally well developed sense of public duty or 
by a hope of using the office as a means to political 
advancement. The low salary makes service in the leg¬ 
islature a financial sacrifice, and keeps out many desira¬ 
ble men. The smallness of legislative districts also plays 
an important part in reducing the caliber of the mem¬ 
bership by facilitating the election of mediocre candi¬ 
dates who would automatically be eliminated if legisla- 


Legislature 


65 


tors were chosen from larger districts. Moreover, the 
large number of new members in every legislature re¬ 
duces the general quality of the whole. Experience 
makes a fair legislator good and a good legislator bet¬ 
ter, yet, re-election is the exception, not the rule. In 
1911, only 17% of the members of the house of repre¬ 
sentatives had served in previous sessions. In 1917, 
1919, and 1921, the percentages of experienced men 
were 24, 39, and 27 respectively. Over half of the mem¬ 
bers of the house at every session are serving their first 
term in any legislative body. The senate contains more ex¬ 
perienced men, partly because half of the members have 
held over from the previous session, partly because re- 
election of senators is more common, and partly because 
members of the house are frequently “promoted” to the 
senate. The fact that the senate is slightly more efficient 
than the house is chiefly due to the greater legislative 
experience of its members. 

The rehabilitation of the legislature, therefore, de¬ 
pends not upon one but upon many factors. Because 
this task is so complex, because it involves the change 
of many things which we have come to regard as polit¬ 
ically sacred, it will be difficult, but because the legis¬ 
lature is the living soul of the entire governmental or¬ 
ganization the task must be attempted. 

The first step is to abolish all but the most funda¬ 
mental constitutional restrictions on legislative action, 
to remove from the constitution all elements of a tem¬ 
porary or non-essential character. A legislative refer¬ 
ence bureau with a library and a bill drafting depart¬ 
ment should be established to aid legislators in the form¬ 
ulation and the technical perfection of bills. Legisla¬ 
tive procedure should be reformed and simplified. Fin¬ 
ally, the bicameral system should be abandoned in fa- 


66 


Government of Oklahoma 


vor of a single chamber. The advantages claimed for 
the bicameral legislature are the representation of dif¬ 
ferent interests in the two houses and the checking of 
hasty and illconsidered legislation. We have no special 
interests that require particular and distinct bases of rep¬ 
resentation in Oklahoma, while the reputed merits of a 
second house as a checking and revising body have not 
been apparent. Where, as with us, the houses are elect¬ 
ed upon practically the same basis, they tend to act 
alike, if controlled by the same party; if opposing par¬ 
ties control, the result is deadlock, not revision, while 
the people find it impossible to enforce responsibility 
for the deadlock because they cannot tell who is to blame. 

It seems desirable that in Oklahoma the legislature 
should consist of about fifty members elected from 
twenty-five districts The legislative term should be 
fixed at four years, one-half of the members retiring every 
two years. Their compensation should be fixed at a 
sum commensurate with the importance of the office, 
not less than one thousand dollars per year, and provisions 
should be made for annual meetings with no limit up¬ 
on the duration of the session. Such a body would be 
small enough to be efficient, yet large enough to se¬ 
cure the representative quality which is essential to a 
legislature. Election from fewer and larger districts 
than at present would insure the selection of abler men 
upon the average. Half of the members would always 
have had previous legislative experience, because of the 
use of the “holdover” principle. The presence of abler 
and more experienced members would decrease the ten¬ 
dency to play petty politics. An objection to providing 
for “holdover” members is that it might delay the re¬ 
tirement of members whose legislative record did not 
meet with popular approval; but since such retirement 


Legislature 


67 


would be delayed for only a short time, it does not seem 
to overbalance the value of retaining experienced men. 
However, it must be remembered that use of the “hold¬ 
over” principle is not essential to the program of re¬ 
form herein suggested. Increased frequency of leg¬ 
islative sessions would mean the adaptation of the law 
to changed needs as they became manifest, while fixed 
and adequate compensation for time spent at sessions 
would do away with the present tendency to “steam- 
roll” necessary business and finish the session as soon as 
possible after sixty days have elapsed. The unicameral 
legislature would be more efficient, because the proce¬ 
dure of lawmaking would be cut in half and friction be¬ 
tween the two houses eliminated; it would be more re¬ 
sponsible to the people because they would have only 
one house to watch instead of two as at present and 
the blame for unwise or vicious legislation would rest 
squarely upon that house. Such a reorganization would 
go far toward making the legislature an asset to the 
state instead of a liability, a transformation which must 
be made in the interest of good government. 

In outlining the above suggestions for reorganization 
of Oklahoma’s legislative department, no mention has been 
made of the relationship between the governor and the le¬ 
gislature. It has been assumed that the people wished to 
continue the present independent status of the legislative 
and executive departments. However, in the chapters deal¬ 
ing with the state executive and with the budget system, 
attention has been called to the fact that this separation is 
very undesirable from the standpoint of administration. 
It is likewise a contributing factor in some of the out¬ 
standing failures of our legislative system. The fact that 
the^e two branches of government are independent, each 
deriving its authority directly from the people, creates 


68 


Government of Oklahoma 


friction between them and increases the likelihood of poli¬ 
tical by-play at the expense of good government. Lack of 
legislative leadership has been another cause of inefficient 
lawmaking. Good laws cannot be framed over night, or 
by well meaning amateurs; they require expert knowledge 
and careful drafting. The governor, because of his position 
as head of the state administration, because of his ability 
to command expert technical information and assistance, 
is pre-eminently in the best position, if otherwise quali¬ 
fied, to make legislative plans. But plans, no matter how 
well drawn, must be transmuted into law before they 
are of any benefit to the state, and so long as the executive 
and the legislative branches of government remain sep¬ 
arated there is no method by which the governor’s plans 
are very likely to be made into law. His messages are 
listened to perfunctorily, and religiously forgotten. He has 
no right to introduce bills, and if he had, legislative jeal¬ 
ousy of “executive domination” would for the most part 
doom them to an early death 55 . Legislative irresponsi¬ 
bility is fostered by the fact that the power of veto is 
vested in an independent branch of the government. The 
exercise of that power, actual or threatened, furnishes 
an excellent way of explaining the failure of popular 
measures to “the folks back home.” 

If the governor were elected by the legislature from 
its own membership, and held accountable to it for the 
proposal of governmental policies and for the manner 
in which those policies Kvere carried out, if, in other 

55 Where the governor is on friendly terms with the majority in 
the legislature, he may prepare bills and have them introduced by 
some member. This has been a rather frequent practice. How¬ 
ever. the independent selection of governor and legislature gives no 
guaranty that they will work in harmony, and furthermore, since the 
governor does not formally sponsor such bills, executive responsibility 
for the initiation of legislative policy is not secured. 



Legislature 


69 


words, a responsible type of government were establish¬ 
ed, these evils would be largely eliminated. Important 
legislative plans would for the most part emanate from 
the administration, and would therefore be much better, 
both in form and in substance, than is usual today. Com¬ 
plete democratic control would be retained, since the 
representatives' of the people would be vested with all 
of their present power to discuss, amend, accept or re¬ 
ject proposed legislation, and would be strengthened by 
the fact that legislators could no longer present the gov¬ 
ernor’s opposition as an excuse for inaction, to their con¬ 
stituents. Deadlocks between the legislature and the ex¬ 
ecutive would cease, for a “break” over an important 
matter of policy would result in the choice of a new 
executive, or a dissolution of the legislature and an ap¬ 
peal to the people, on the part of the governor. In eith¬ 
er case, harmony between the branches would be the 
eventual result. A further advantage would be, that if 
the legislature were the road to the governorship more 
men of ability and ambition would seek places in that 
body, and thus raise the standard of its average mem¬ 
bership. Incidental benefit would result from the elimina¬ 
tion of the present state wide primary and general elec¬ 
tions for the governorship, with their costly campaigns, 
all too frequent “mud-slinging,” and temptation to po¬ 
litical irregularities, which, to a large extent, discour¬ 
age political ambition in men of moderate means or high 
ideals. 

Thus this recasting of the relationship between the 
legislative and the executive departments of our govern¬ 
ment offers many advantages. The possible arguments 
against it prove on analysis to be either untenable or 
negligible in comparison with the advantages to be gain¬ 
ed. It does not afford opportunity for governmental 


70 


Government of Oklahoma 


tyranny and encroachment upon individual rights. The 
most efficient safeguards against such evils are vigilant 
popular control of the government, and fundamental 
constitutional limitations enforced by an independent ju¬ 
diciary. Opportunity for exercising the first of these is 
amply secured by popular election of the legislators—is 
facilitated, in fact, since there is but one man whom the 
voters of each district need to reprove if the government 
does not suit them; while the latter is entirely consistent 
with a government organized on the responsible system. 
As has been pointed out, such an organization is entirely 
democratic, for the final responsibility for the government 
rests in the hands of men chosen directly by the people. 
Where the two-party system is well developed, it provides 
a form of government which combines stability with flex¬ 
ibility and responsiveness to popular control. 

The decision as to whether this form of government 
should be adopted, however, must rest with the people of 
Oklahoma, after full consideration of the questions involv¬ 
ed. It is not indispensable to the improvement and re¬ 
form of our legislative and executive departments, al¬ 
though it is the conviction of the authors of this book 
that without it such reform and improvement will not be 
of as much value as they would be if it were adopted. 
A more detailed consideration of this subject, as con¬ 
nected with a proposed program of organization for 
Oklahoma's government, will be found in the final chapter. 


CHAPTER III. 


THE CHIEF EXECUTIVE 
GENERAL PROVISIONS 

The executive authority of the state is not vested in any 
one man but is divided among thirteen elected officials, in¬ 
cluding the Governor, Lieutenant-Governor, Secretary of 
State, State Auditor, Attorney-General, State Treasurer, 
Superintendent of Public Instruction, State Examiner ana 
Inspector, Chief Mine Inspector, Commissioner of Labor, 
Commissioner of Charities and Corrections, Commissioner 
of Insurance, and “other officers provided by law and this 
Constitution.” The President of the Board of Agriculture 
has been added to this list of executives by the legislature 1 . 

These officers “perform such duties as may be designated 
in this constitution or prescribed by law 2 .” 

Nowhere in the constitution is it definitely stated that 
the governor or any other of these officers shall be elect¬ 
ed, but such phrases as “Governor and other elective of¬ 
ficers 3 ,” the term of office shall be four years “next after 
their election 4 ,” “the state officers chosen at the first 
election 5 ,” place it beyond a reasonable doubt that the 
constitution intended to make these thirteen executive offi¬ 
cers elective. 

The decentralization of the state administration is made 
even more thoroughgoing by Section 60 of Article V. of 
the constitution, which provides, “the Legislature shall 

1 R. L. Ok. 11910, Sec. 13. 

2 Const. Art. VI, Sec. 1. 

3 Const. Art. Ill, Sec. 4. 

“Const. Art. VI, Sec. 4. 

Tbid. 



72 


Government of Oklahoma 


provide by law for the establishment and maintenance of 
an efficient system of checks and balances between the of¬ 
ficers of the Executive Department, and all commission¬ 
ers and superintendents, and boards of control of State 
institutions, and all other officers entrusted with the col¬ 
lection, receipt, custody, or disbursement of the revenue 
or moneys of the State whatsoever.” With the executive 
power distributed among these thirteen constitutional ex¬ 
ecutive officers, and the power of establishing checks and 
balances among them placed in the hands of the legisla¬ 
ture, it is difficult to understand what is meant by the 
phrase “The Supreme Executive power shall be vested in 
a Chief Magistrate, who shall be styled ‘The Governor of 
the State of Oklahoma’.” 6 That this clause does not 
give him such administrative control over his fel¬ 
low executive officers as is usually associated with ex)- 
ecutive power seems clear from a statement of the 
court to the effect that “the state executive officers 
below the Governor, with a few exceptions, are as 
independent of his control in the performance of their 
duties as are the officers of the counties or of the 
townships.” 7 And it is a well-known fact that the 
governor exercises almost no administrative control over 
these officers. The court also says, speaking of the state 
executive officers, “None of these officers, in carrying out 

the mandate of the Constitution_, acts as the agent of 

the governor.” 8 A Kansas court, construing a con¬ 
stitutional provision very similar to the one under discus¬ 
sion, said: “the term ‘supreme executive power’ is some¬ 
thing more than a verbal adornment of the office, and im¬ 
plies such power as will secure an efficient execution of 

*Const., Art. VI, Sec. 2. 

7 St. ex rel. Atty. Gen. y. Huston, Judge, 27 Ok. 606, 113 Pac. 190. 

Tbid. 




Chief Executive 


73 


the laws, .‘to be accomplished, however, in the man¬ 

ner and by the methods and within the limitations pre¬ 
scribed by the Constitution and statutes, enacted in har¬ 
mony with that instrument.” 9 The same thing may 
be isaid regarding the executive power in Oklahoma. The 
governor does not derive any general power from the fact 
that the “Supreme Executive power” is vested in him but 
may only avail himself of such power as the constitution 
expressly gives him or as the legislature, acting under 
the constitution, may specifically grant him. 

He does, however, occupy an important position legally 
by virtue of this section. While all the other executive of¬ 
ficers may be forced by the courts, through a writ of 
mandamus, tc perform the duties laid upon them by the 
constitution and laws of the state, or be restrained from 
official misconduct by a writ of injunction, the governor 
is not subject to such control 10 . In refusing to issue a 
writ of n junction against the governor the court has 
held: “The question of jurisdiction is squarely raised by 
the counsel for the Governor, and we conclude that the 
courts of this state may not control the actions of the 

Chief Executive of the state. But a tribunal other 

than the courts must be resorted to for a correction of his 
official wrongs, if any, to wit, the Legislature.” 11 In view 
of these statements of the court, then, it would seem that 
the chief significance of the supreme executive power is 

ff st. ex rel. Stubbs v. Dawson, 86 Kan. 180, 119 Pac. 360, 39 L. 
R. A. ns 993. 

10 Norris v. Cross, Sec. of St. 25 Ok. 287, 105 Pac. 1000: St. ex 
rel Dunlop, St. Treas., v. Cruce et al, Com’rs. of tbe Land Office, 31 
Ok. 486, 122 Pac. 237; City of Ok. v.' Haskell, 27 Ok. 495, 112 Pac. 992; 
State ex rel. Atty. Gen. v. Huston, Judge, 27 Ok. 606, 113 Pac. 190, 
34 L. R. A. ns 380. 

11 St. ex rel. Atty Gen. v. Huston, Judge, 27 Ok. 606, 113 Pac. 190. 





74 


Government of Oklahoma 


that it places the governor in a higher position in respect 
to the courts than the other executive officers occupy. 

QUALIFICATIONS 

Every citizen of Oklahoma is eligible for the office of 
governor who is a “male citizen of the United States, of 
the age of not less than thirty years, and who shall have 
been three years next preceding his election, a qualified 
elector of this state.” 12 While these qualifications are 
so liberal as to permit practically any man who can afford 
to pay the expenses of a campaign, whether he possesses 
any fitness for the office or not, to become a candidate 
for the governorship, the possibility that an incompetent or 
dishonest man may entrench himself for many years in 
this position is obviated by the constitutional provision 
that a governor may not hold office for two successive 
terms 13 . At the same time this provision makes it 
impossible, of course, for the people to reward a gov¬ 
ernor for efficient and praiseworthy work by retaining 
him in office, and also makes him quite irresponsible to 
the people. 

NOMINATION AND ELECTION 

The governor of Oklahoma is chosen at a statewide gen¬ 
eral election for a term of four years. The term begins on 
the second Monday in January after his election 13 . 

The various party candidates for the office of governor 
are nominated at the regular primary election. Despite the 
strict limitations placed by law on campaign expenditures 
(a full account of which appears on another page) it is gen¬ 
erally understood that very large sums of money are need¬ 
ed in order to wage a successful primary campaign in this 

“Const., Art. VI. Sec. 3. 

“Const., Art. VI, Sec. 4. 



Chief Executive 


75 


large state with its scattered population. Rumors are free¬ 
ly circulated that individuals and corporations “purchase” 
candidates by contributing large sums to their campaign 
funds in exchange for promises of certain official favors. 
However greatly the fair-minded inquirer may discount 
these rumors., he cannot help but realize that unless a 
man has a large private income or a strong financial back¬ 
ing of some sort, he cannot afford to become a candidate 
for the governorship. The expenses of the primary cam¬ 
paign, and the second campaign which the party nominee 
must wage before the general election, are necessarily very 
great, while the salary of the governor is but $4,500. It 
was fixed at this figure in the Schedule to the Constitu¬ 
tion 14 , passed in 1907, and has not been altered since, despite 
changing economic conditions. 

REMOVAL BY IMPEACHMENT 

The governor, a,s well as all other elective state officers, 
is liable to impeachment by the legislature for “wilful ne¬ 
glect of duty, corruption in office, habitual drunkenness, 
incompetency, or any offense involving moral turpitude 
committed while in office.” 15 Since a specified method 
of removal is set forth it would seem that the intent of 
the constitution was to make the officers named subject 
to removal only by impeachment, that is, to place them be¬ 
yond the power of legislative measures respecting removal. 
The house of representatives presents all impeachments, 
and with the house alone rests the authority to institute 
impeachment proceedings. The senate sits as a court of 
impeachment, with the senators on oath to try impartially 
the person impeached. A two thirds vote of the senators 
present is necessary to impeach an officer. Judgment of 


“Schedule to the Const. Sec. 15. 
“Const., Art. VIII, Sec. 1. 



76 


Government of Oklahoma 


impeachment does not extend beyond removal from office, 
but this does not prevent the punishment of any such of¬ 
ficer on charges growing out of the same matter by the 
courts of the state 16 . Regular sessions of the legis¬ 
lature are held only biennially, however, and ispecial ses¬ 
sions may not be called by anyone save the governor. At 
special sessions no subjects may be acted upon save those 
which the governor recommends. It might seem im¬ 
possible, therefore, to impeach the governor at any time 
other than at a regular session. While the question has 
never definitely arisen in Oklahoma, there are strong 
grounds for believing that the legislature could bring 
impeachment proceedings either during a special session 
or could convene especially for this purpose without the 
call of the governor. 

Judge Robert L. Williams, former governor of Okla¬ 
homa, has called the attention of the authors to the fact 
that section six of Article eight of the Oklahoma Con¬ 
stitution, the article dealing with impeachments, provides 
that “The legislature shall pass such laws as are neces¬ 
sary for carrying into effect the provisions of this article.” 
“I am of the opinion,” writes Judge Williams, “that this 
clearly empowers the legislature to provide by statute 
that the house may assemble for impeachment investiga¬ 
tion upon the call of the speaker and that the senate 
may assemble on call or at a fixed time after the house 
returns the charges.” Up to the present time no such 
statute has been passed. 

Cases involving the impeachment of former governor 
Sulzer of New York, and the procedure followed in 
’ the impeachment of former governor Ferguson of Texas, 
would seem to warrant the belief that impeachment pro- 


5 Const., Art. VIII, Sec. 5. 



Chief Executive 


77 


ceedings may be instituted by the legislature either upon 
their own motion or during a special session of the legis¬ 
lature. 

In the case of Robin v'. Hayes (143 N. Y. S. 324, 325), 
which involved the impeachment of governor Sulzer, it 
was held that the assembly was the sole judge of the 
time as to when this power should be exercised, and 
could convene itself for that purpose. Further, it 
was held that the impeachment of the governor by the 
assembly while in extraordinary session was valid, though 
the constitution expressly provided that no subject should 
be acted on at such a session except such as the governor 
recommended. The ground for this holding was the fact 
that the power of impeachment is a judicial power and not 
a legislative power and so should be independent of out¬ 
side control. 

In the impeachment of governor Ferguson of Texas, 
the house was called by the speaker to begin investigations; 
but before any action was taken, the governor called the 
legislature in special session. 

If we take these cases as precedents, it would seem 
that the governor of Oklahoma might be impeached either 
during a special session of the legislature or else at a 
session convened by the proper officer of the legislature 
itself, for that purpose. 

Impeachment has proved, in practice, to be a poor meth¬ 
od of holding an officer responsible. If the majority in 
either the house or the senate is of the same party as the 
governor, it is extremely unlikelv that he would ever be 
impeached, for impeachment proceedings nearly always be¬ 
come mere partisan battles. And on the other hand, threat¬ 
ened impeachment furnishes a strong weapon in the hands 
of a minority party. Even the introduction of impeach- 


78 


Government of Oklahoma 


ment proceedings, though the group introducing them does 
not expect the charges to pass, injures the confidence of 
the people and the other administrative officials in the 
governor, and in view of this fact a governor would con¬ 
ceivably make many compromises with ,sueh a group rath¬ 
er than have proceedings brought against him. So, on the 
whole, impeachment as provided for in the Oklahoma Con¬ 
stitution is a very ineffectual means of holding an un¬ 
scrupulous officer in check. 

LIEUTENANT-GOVERNOR SUCCEEDS WHEN 

“In case of impeachment of the Governor, or of his 
death, failure to qualify, resignation, removal from the 
state, or inability to discharge the powers and duties of 
the office, the said office, with its compensation, shall de¬ 
volve upon the Lieutenant Governor for the residue of the 
:term or until the disability shall be removed.” 17 

It has been held that the phrase “removal from the 
state” refers to both temporary and permanent removal, 
and that in the case of temporary removal the lieutenant- 
governor exercises the functions of the governor “until 
the disability is removed.” but in case of permanent remov¬ 
al he serves “for the residue of the term.” The governor 
may leave the state as he pleases, without forfeiting his 
office, but his powers as governor become dormant the very 
moment he crosses the state line, and revive again as 
soon as he returns within the borders of the state. 18 

It has been held by courts engaged in construing provi¬ 
sions similar to those in the Oklahoma Constitution, how¬ 
ever, that while the lieutenant-governor exercises all the 
functions of the governor during the temporary absence of 
that executive from the state, the governor himself icon- 


1T Oonst., Art. VI, Sec. 16. 

J8 Ex parte Hawkins, 10 Ok. Cr. 396, 136 Pac. 991; Ex parte Crump, 



Chief Executive 


79 


tinues to draw the compensation attached to the office. 19 
In case of the removal from the state or the disability 
10 Ok. Cr. 133, 135 Pac. 428. 

to perform the duties of the office of governor on the 
part of both the governor and lieutenant-governor, the presi¬ 
dent pro tempore of the senate acts as governor, and in 
case of the absence or disability of all three of these of¬ 
ficers, the speaker of the house of representatives suc¬ 
ceeds to the place. 20 The acting governor, whoever he may 
be, may exercise all the executive functions of the office, 
for these functions “belong to the public and are confined 
to the state and cannot be exercised out of the state.” 21 

POWERS OF THE GOVERNOR 

Certain specific powers and duties are bestowed upon 
the governor by the constitution. 22 In addition to these, 
other duties may be “prescribed by law” 23 . In the follow¬ 
ing discussion of his powers and duties, both those set 
forth in the constitution and those imposed by the legis¬ 
lature will be considered. 

POWERS IN RESPECT TO LEGISLATION 

The governor’s powers in respect to legislation will be 
considered first. These powers are not extensive; he has 
no control over the organization of the legislature and 
very little over its sessions, except in extraordinary cases; 
nor can he take an active part on the floors of the houses 
in getting a comprehensive legislative program passed. The 


“Warmoth. v. Graham, 26 La. Ann. 568, 21 Am.' Rept. 551; State 
ex rel Crittenden v. Walker, 78 Mo. 139. 

20 Const., Art. VI, Sec. 15. 

*Ex parte Hawkins, 10 Ok. Cr. 396, 136 Pac. 991; Ex parte 
Crump, 10 Ok. Cr. 133, 135 Pac. 428. 

22 Const., Art. VI, Secs. 6 to 14. 

23 Const., Art. VI, Sec. 1. 



80 


Government of Oklahoma 


nature of his authority is, in general, prohibitory rather 
than constructive. 

By virtue of constitutional provisions, 24 regular sessions 
of the legislature are held biennially on the first Tuesday 
after the first Monday in January. The governor has no 
power to change the time of the beginning of this session, 
or to limit the matters which are discussed while it lasts. 
He may convoke or adjourn the legislature to a place 
other than the capitol when, in his opinion, the public 
safety or welfare or health of the members may require it, 
provided that two-thirds of the members of each house con¬ 
cur in his opinion 25 , which simply means that he has the 
power of prohibiting the holding of sessions elsewhere 
than the capitol without his consent. 26 In case of a dis¬ 
agreement between the two houses as to the time of ad¬ 
journment, the governor may, if called upon, adjourn 
the legislature to any date not beyond the time for the 
:next regular session, but he may not exercise this power 
unless directly called upon by the presiding officer of the 
house first moving the adjournment. 27 When vacancies 
occur in the legislature it is the duty of the governor to 
issue writs of election to fill such positions. 28 

In regard to special sessions the governor has a great 
deal more power, in that he may call such a session when¬ 
ever in his opinion a situation arises which demands it. 29 
It rests solely with the governor to decide when an extra¬ 
ordinary occasion sufficient to justify the calling of a spe¬ 
cial session exists and his discretion in the matter will not 

2 *Const., Art. V, Secs. 26 and 27. 

* 5 Oonst., Art. VI, Sec. 14. 

^For construction see Coyle v. Smith e:t al, 28 Ok. 121, 133 Pac 944 

07 Const., Art. VI, Sec. 14. 

“Const, Art. V, Sec. 20. 

"Const, Art. VI, Sec. 7. 



Chief Executive 


81 


be judicially reviewed. 30 At special sessions the subjects 
for discussion are limited to those recommended by the 
governor. 31 Any acts passed on subjects which were not 
recommended by him are void. 32 He has, however, no con¬ 
trol over the time of adjournment of these sessions, or 
over the manner in which the subjects he recommends 
are passed on. His authority extends only to recommend¬ 
ing subjects for legislation, after which the power of the 
legislature to enact legislation on such subjects is plenary. 33 

While the governor has, then, slight authority over the 
time when sessions of the legislature shall begin or end, and 
no powers broad enough to allow him to suggest and to 
sponsor a definite legislative program, nevertheless he has 
several methods of influencing and participating in leg¬ 
islation. At the beginning of each session he not only may, 
but must, make a report to the legislature on the con¬ 
dition of the state, together with such recommendations 
as he may deem expedient. At other times during the 
session he may communicate such matters as he may 
elect, or the legislature require. 34 But the legislature is 
not bound even to consider his recommendations, least 
of all to put them into the form that the governor be¬ 
lieves would best suit the needs of the state. If one or 
both of the houses of the legislature should happen to 
be dominated by a political party opposed to that to which 
the governor belonged, the legislative program of the ex¬ 
ecutive would almost surely be discarded without con¬ 
sideration. Under the Oklahoma system it is perfectly pos- 

"Farrelly v. Cole, 60 Kan. 856, 56 Pac. 402; St. y. Fair, 35 Waslh. 
127, 76 Pac. 731, In re State Census, 9 Colo. 642, 21 Pac. 477. 

31 Const., Art. VI, Sec. 7; In re Governors Proclamation, 19 Colo. 
333, 35 Pac. 530. 

^People y. Curry, 130 Cal. 82, 62 Pac. 516. 

33 St. y. Clancy, 30 Mon. 529, 77 Pac. 312. 

34 Const., Art. VI, Sec. 9. \ 



82 


Government of Oklahoma 


sible for this situation to occur. All the members of the 
house of representatives and one-half of the members 
of the senate are elected every two years, and the gov¬ 
ernor every four years. At the election when legislators 
are being elected without reference to a gubernatorial race, 
there may be other influences, such as a national election, 
which will cause a majority of members not of the gov¬ 
ernor’s party to be sent back to the legislature. When this 
is the ca Q e it could hardly be expected that the legislature 
would carry out the recommendations of the governor as 
planning officer, or even discuss the measures which he 
had proposed for its consideration. 

But if the governor is not in a position to get a vote 
on the exact legislation which will put into effect the pro¬ 
gram he desires, he may by his veto power 30 keep out 
that which seems most undesirable to him. Every bill 
which is parsed by both houses must be submitted to the 
governor for his action. He may sign it, thus approving 
it; may hold it five days, at the expiration of which time 
it automatically becomes a law, unless the legislature has 
adjourned in the meantime; or may veto it. A vetoed bill 
must be returned to the house in which it originated. There 
the objections of the governor to it must be entered in 
the journal of the house and reconsideration be given the 
bill. It must then pass both houses by a vote of two-thirds 
of the members elected to each house in order to become a 
law over the governor’s veto. In the case of emergency 
bills a vote of three-fourths of the members is neces¬ 
sary . 36 If because of the adjournment of the legislature 
the governor does not have five days in which to pass on 
bills, they in no case become law without his signature. 
Fifteen days are allotted to him after adjournment in 


“Const., Art. VI, Sec. 11. 
“Const., Art. V, Sec. 1>8. 



Chief Executive 


83 


which to approve bill,s passed during the last days of a 
session. This power in regard to the important legisla¬ 
tion which is usually passed during the last few days of a 
session would seem to place the governor in an influential 
position, but what it really amounts to is that he has a 
choice of vetoing legislation of which he does not approve, 
thus letting things remain as they are, or of approving 
what he considers poor legislation on the subject. 

In regard to appropriation bills greater power is accord* 
ed the governor . 37 He may veto any item of an appro¬ 
priation bill embracing distinct items and yet the items 
not disapproved will have the force of law. Disapproved 
items are void unless repassed by a two-thirds vote of 
the legislature. The question of the governor’s right to 
veto bills and items of bills after adjournment of the 
legislature was raised but not definitely decided in the 
case of Carter, State Auditor, v. Rathburn. 3 * An appro¬ 
priation for the salary of Miss Rathburn was included 
in the appropriation bill submitted to the governor for 
his action on the day the legislature adjourned. Ten days 
after adjournment the governor disapproved this and a 
few other items of the bill. With these exceptions the 
bill was approved. Miss Rathburn instituted suit to re¬ 
quire the auditor to honor her claim, on the ground that 
the governor’s veto of items of a bill when such items 
cannot be returned to the legislature for reconsideration 
was unconstitutional. The court, however, did not go in¬ 
to the validity of the governor’s veto but held that be¬ 
cause he did not approve the item within fifteen days 
after adjournment it did not become law as provided for 
in the constitution. A repassage by a two-thirds vote was 
the only method provided for making a vetoed item law, 

"’Const., Art. VI, Sec. 12. 

39 0kla. Appellate Court Reporter, Vol. XVIII, p. 18. See also 
Regents v. Trapp, 28 Okla. 83; and Appendix A. 



84 


Government of Oklahoma 


hence, because the item had not become law as required 
by the constitution, it was void. The decision, then, actu¬ 
ally declares void all laws not approved by the governor 
after adjournment, not because he has a right to veto 
them, but because he has not approved them. The result 
is the same on whichever ground the argument is based. 

The right of preparing and presenting the budget is a 
special legislative power given to the governor by the 
legislature of 1919. 39 The various state officers and heads 
of state institutions are required to furnish certain pre¬ 
scribed financial information to the governor, and to furn¬ 
ish any other such information upon his request. When 
this material is collected, it is the duty of the governor to 
organize a budget which provides for all the financial 
needs of the state and to present it to the legislature 
within five days after the beginning of each regular ses¬ 
sion. The governor also submits a tentative appropriation 
bill covering all appropriations. The “budget bill”, as it 
is then called, is considered in joint open session by the 
standing appropriation committees of each house. The 
governor or his representatives may sit at these meetings 
and have a right to be heard on any question which arises 
for consideration. But beyond the powers of presenting 
the budget and of demanding a hearing on any question 
concerning it, the governor's authority does not reach, for 
the legislature may increase or decrease any items of the 
budget, and may consider new appropriation bills after the 
governor's bill has been acted upon by both houses. These 
provisions make it possible in the first place, for the leg¬ 
islature to so alter the governor's budget that it in no de¬ 
gree approaches the financial program he had asked for, 
or, by means of the second provision, to vote against the 


>S. L. Ok. 1919, Ch. 142. 



Chief Executive 


85 


executive budget and then to substitute an entirely new 
one. 40 It is apparent, then, that the governor cannot be 
held responsible for the budget as it is finally passed. 

But while the governor’s powers in respect to legisla¬ 
tion are not broad, he has several extra-legal methods of 
participating in it. One of these li^s in the possibility of 
using the veto power as a weapon of offense as well as a 
means of prohibiting specific bills. This he may do, with 
considerable effect, by making it known that he will veto 
certain bills which a powerful group is sponsoring unless 
that group lends its aid to certain others that he desires. 
Another method, and one which adds considerable influence, 
lies in a discreet use of his power of appointment. By ap¬ 
pointing friends of influential members of the legislature 
to the administrative positions which it is his duty to fill 
he may gain the co-operation of these members in putting 
through bills which he favors. Still another circumstance 
which sometimes gives him an opportunity to have a hand 
in legislation is the fact that he may be the leader of his 
party. If he happens to be, and if his party is in the ma¬ 
jority in the legislature, he may influence its legislative 
policy in such a way that the bills passed will provide the 
means for carrying on a definite administrative program. 
The strength of his position as leader of his party, however, 
even where he has it, is considerably lessened by the fact 
that often the existence of party factions prevents the es¬ 
tablishment of a party policy in regard to administrative 
affairs. But he has still another method of recourse when 
party members become obstreperous. Through publicity he 
may draw the attention of the people of the state to the 
issues under discussion. Then, if his program is such as 
to gain the favorable opinion of the people, legislators may 

^Further comment on the budget is given in chapter XII, The Ap¬ 
propriation and Budget System of the State. 



86 


Government of Oklahoma 


be forced, in order to please their constituencies, to vote 
for bills that they otherwise would not approve of. 

While, then, the governor is not without some influence 
over legislation, since he has important powers as to spe¬ 
cial sessions, the right of veto, and several extra-legal 
methods of applying pressure to secure the passage of a 
law which he favors, he does not have sufficient power to 
make him definitely responsible for the laws controlling 
state administration. 

POWERS AND DUTIES IN RESPECT TO ADMINISTRATION 

The chief executive in Oklahoma has many detailed 
administrative powers, but no broad general power of con¬ 
trolling and directing the administration. The heads of 
most of the important executive departments are elected 
by the people and are independent of the governor; local 
officials are also almost wholly independent. 

Twelve executive officers in addition to the Governor, 
namely, the Lieutenant-Governor, the Secretary of State, 
the Treasurer, the Auditor, the Examiner and Inspector, 
the Commissioner of Labor, the Commissioner of Chari¬ 
ties and Corrections, the Chief Mine Inspector, the In¬ 
surance Commissioner, the President of the Board of Agri¬ 
culture, the Superintendent of Public Instruction, and the 
Attorney-General, are elected at the general state-wide 
election. 41 The duties of these officers are prescribed by 
the constitution and by law. 42 By virtue of this fact the 
administrative departments of the state are beyond the 
power of the governor to control. Neither the fact that 

41 The Corporation Commission exercises administrative powers in 
a special {field, which in distinctly separate from the general adminis¬ 
tration of the state, aiid, therefore, will not be considered in connec¬ 
tion with the executive power. 

"Const., Art. VI, Se\ 1. 



Chief Executive 


87 


he is the supreme executive of the state nor the fact that 
it is his duty to cause the laws of the state to be faith¬ 
fully executed 43 gives him any control over the work of 
these elective officers. He may not direct the execution 
of the laws which it is their duty to administer, place 
any duties upon them, remove them from office for any 
cause, or otherwise exercise any of the powers which 
are generally considered to be the prerogatives of a chief 
administrative officer. In causing the laws of the state to 
be faithfully executed, it is not his duty to execute the 
laws, but to observe carefully the manner in which the 
different officers of government exercise their functions 
and execute the laws committed to their charge. In case 
they fail to perform properly their legal duties it is his 
duty to bring the subject to the cognizance of that de¬ 
partment of government which has pcwer to remove or 
punish the delinquents. 44 The Oklahoma supreme court, 
discussing the powers of the governor in respect to the 
state examiner and inspector under the clause which 
makes it the duty of the governor to see that the laws of 
the state are faithfully executed, says: “Obviously, the 
duties of the State Examiner and Inspector, as prescribed 
by the Constitution, are to be discharged by him indepen¬ 
dent of the Chief Executive of this state. It is not within 
the power of the Chief Executive to prevent the State Ex¬ 
aminer ana Inspector from discharging any duty imposed 
upon him by virtue of the Constitution or the statutory law 
as in force m this state. The duty of the Chief Executive 
arises when the State Examiner and Inspector fails to dis¬ 
charge his duty, it then being the duty of the Chief Ex¬ 
ecutive to see that the laws are faithfully executed and 


"Const., Art. VI, Sec. 8. 

^Shields v. Bennett, 8 W. Va. 75; Richardson v. Yo ung, 1 22 Tenn. 
471, 125 S. W. 66. 



88 


Government of Oklahoma 


that all executive officers discharge the duties imposed upon 
them joy law.” 45 The governor, then, may call the atten¬ 
tion of the legislature, which alone has power to re¬ 
move state elective officers, 14 to the failure of any par¬ 
ticular state officer to perform his duty, and ask for its 
action; or, in the case of any illegal act of omission 
or commission on the part of such independent executive 
officer, may take steps through court action to force him 
to execute the law. Impeachment, however, is an extremely 
ineffective weapon for .securing administrative harmony. It 
can only be exercised during a regular session of the leg¬ 
islature or by the calling of an expensive special session. 
A chief executive would be loath to use it if the delinquent 
officer were a member of his own party, and the legisla¬ 
ture would hardly remove him if he were a member of the 
party which was in the majority in either house. The 
greatest objection, however, to impeachment as a means 
of removing objectionable administrative officers lies in 
the fact that many acts of such officers which interfere 
with administration are not impeachable offenses. Such 
an officer might well refuse to work in harmony with the 
other officers, but yet be performing all his legal duties. 

The other method by which the governor may cause the 
laws of the state to be faithfully executed, namely, court 
action, must be considered with care, in order to ascertain 
to what extent it makes the governor a real administra¬ 
tive head. Pronouncements such as the following make 
it obvious that the courts will force any state officer, with 
the exception of the governor, to perform an administra¬ 
tive act, upon the request of another. “Whatever con¬ 
trariety of opinion may have, at one time, existed on the 
subject, it is now a settled principle that a peremptory 


45 State v. Cockrell, 27 Ok. 630, 112 Pac. 1000. 

^See discussion above as to removal by impeachment. 



Chief Executive 


89 


mandamus will go to state officers, such as auditor, treas¬ 
urer, . . for the purpose of coercing performance of 

purely ministerial duties devolving on such officers by 
law.” 47 “The state is sovereign, and cannot ;be sued by her 
citizens, in her own courts, without her permission; but 
a civil proceeding, by which one officer of the state seeks 
to compel another officer of the same state to perform a 
ministerial duty, is not, in the proper sense of the words, 
a suit against the state.” 48 The “right of the governor to 
bring suit in the name of the state, in all matters publici 
juris , is placed upon the high ground of his duty, under 
the constitution of the state, to cause the laws to be faith¬ 
fully executed. . . .” 49 The governor, then, may go into 

the courts to obtain a restraining order against a state 
officer to prohibit him from doing that which the law does 
not allow him to do, or may obtain a writ of mandamus 
to force him to perform a ministerial duty which the 
law imposes upon him. 

The attorney general occupies, by virtue of the statu¬ 
tory provisions prescribing his duties, a somewhat dif¬ 
ferent position in relation to the governor than do the oth¬ 
er executive officers. He shall when requested by the gov¬ 
ernor or either branch of the legislature, appear for the 
state and prosecute or defend in any other court (beside 
the supreme court and the criminal court of appeals) or 
before any officer, in any cause or manner, civil or crimi¬ 
nal, in which the state may be a party or interested. 
“It shall be the duty of the attorney general, at the re¬ 
quest of the governor, auditor, or treasurer, to prosecute 
any official bond or any contract in which the State is 

47 Quoted with approval in St. v. Huston. Judge, 27 Okla. at page 
628 from St. v. Nichols, Gov., 42 La. Ann. 209. 

48 Quoted with approval in St. v. Huston, Judge, cited above, from 
St. v. Jumel, Auditor, 30 La. Ann. 863. 

49 St. v. Huston, et al., 21 Ok. 782, 97 Pac. 982. 



90 


Government of Oklahoma 


interested upon a breach thereof, and to prosecute or de¬ 
fend for the State all actions * * * * relating to any 
matter connected with either of their deparments.” 50 It 
was decided 51 under the territorial statute which is prac¬ 
tically the same as the above quoted law that the at¬ 
torney general has no power to bring suit in the name 
of the state, or to prosecute or defend any action in which 
the state may be a party, or interested, in a district court, 
except upon the request of the governor or either branch 
of the legislature. The statutes, then, have added to the 
governor’s constitutional power to control through court 
action the performance by state officers of their minis¬ 
terial duties, a certain amount of control over the official 
functions of the attorney general. 

But while these legal remedies afford the governor some 
opportunity of control in case of legal defalcation on the 
part of the officers, the relation existing between the 
chief executive and the other officers is legal and not ad¬ 
ministrative. 

To assist the governor in causing the laws of the state 
to be faithfully executed, it is provided that all state of¬ 
ficers, commissioners, and officers of state institutions 
must furnish semi-annual financial reports to the gov¬ 
ernor, and furnish to him, upon his request, any inform¬ 
ation relating to their respective offices and institutions 
which he may desire. 52 From these reports it is presumed 
that the governor can ascertain whether or not the of¬ 
ficers reporting are discharging the duties imposed upon 
them by law. As a matter of fact, however, the gov¬ 
ernor does not have a sufficient staff to check up on 
these reports and find out whether or not the work is be- 

50 R. L. Okla. 1910, Secs. 8057 and 8058. 

51 St. v. Huston, et al., 21 Ok. 782, 97 Pac. 982. 

“Const., Art. VI, Sec. 33. 



Chief Executive 


91 


ing carried on in the best way, from an administrative 
standpoint. The reports as a rule are detailed in the ex¬ 
treme, have no summary, draw no significant conclusions, 
and hence afford little help to the governor. 

The legislature has added only one officer to be elect¬ 
ed at large to the twelve provided for in the constitu¬ 
tion. 53 As new conditions which demand state supervision 
or state action have arisen, the duties in connection there¬ 
with have in some cases been placed on already existing 
officers, but usually they have been given to new appoint¬ 
ive officers, boards, or commissions. The privilege of se¬ 
lecting many of the officers to carry on these new ac¬ 
tivities has been given to the governor, thus placing 
him in a positon of some responsibility as regards these 
fields of work. His authority, and hence, the degree in 
which he may be held responsible, even where he has the 
appointing power, has been limited to a great extent, how¬ 
ever, by legislative assignment of duties, fixation of sal¬ 
aries, and restrictions on the appointing and removal pow¬ 
er. 

The governor appoints some fifty-five more or less im¬ 
portant state officers and boards. His discretion in re¬ 
gard to the selection of these agencies is limited by legis- 
tive restrictions in all save seven cases. Those in refer¬ 
ence to which he has a free choice are: the board of con¬ 
trol of military training 54 ; the board of commissioners 
for the promotion of uniform state laws 55 ; the pardon 
and parole attorney 56 ; the state cemetery board 57 ; the 
Americanization commission 58 ; the board of managers of 


53 R. L. Okla. 1910, Sec. 13. 
M S. L. 1917, Oh. 246. 

55 S. L. 1910-11, Ch. 151. 

"S. L. Ok. 1919, Ch. 66. 
6 TMd, Ch. 153. 

"Ibid, Oh. 315. 



92 


Government of Oklahoma 


state eleemosynary institutions 59 ; and the state commis¬ 
sioners of health 60 . Of these seven only two, the board of 
managers of eleemosynary institutions, and the state com¬ 
missioner of health, possess broad administrative powers; 
the others, for the most part, carry on definitely assigned 
duties within a narrow field. 

The limitations upon the governor's appointing power 
may be classified as: professional experience qualifications; 
residence requirements; professional nomination require¬ 
ments; special partisan interest restrictions; political re¬ 
strictions : locality restrictions; special business interest re¬ 
quirements; and the necessity of the advice and consent 
of the senate. 

The limitations as to professional experience are designed 
to insure that the governor's choice will lie within the 
bounds of those actually qualified to carry on the duties 
of the office; and do not, therefore, interfere in any real 
way with his discretion as to the particular person who 
shall fill the place. For the most part the laws require, 
first, that persons who may be appointed to certain pro¬ 
fessional boards must be able to show proof, by way of de¬ 
gree or otherwise, of sufficient education to make them 
qualified to practice their profession; and second, that they 
shall have been engaged in the practice of such profes¬ 
sion in this state for a designated number of years prior 
to their appointment. The chief positions which are thus 
limited are membership in examining and licensing boards, 
such as the board of examiners of optometry 61 , to be 
eligible for which a man must be an optometrist who 
has practiced in the state for five years; and the board 


“Ibid, Ch. 188. 

60 R. L. Ok. 1910, Sec. 6786. 
61 S. L. 1910-11, Oh. 20. 



Chief Executive 


93 


of chiropractic examiners 62 , the members of which must 
be graduates of reputable chiropractic colleges and have 
practiced in this state for at least five years just pre¬ 
ceding their appointment as members of the board. 

In addition to these professional education and exper¬ 
ience restrictions on the governor’s power of appointing 
the members of examining and licensing boards, there is 
the reqirement, which applies to five of these boards, as 
well as to several others, that persons who are selected 
must have been nominated by the recognized ,state asso¬ 
ciation of their profession. For example the executive 
council of the state bankers’ association submits to the 
governor a list from which the banking board 62 * must 
be chosen, and the state central committees of each of 
the two leading political parties choose the lists from which 
the two appointive members of the election board 62b are 
selected. Provisions are made to enable the governor to 
appoint members of all these boards, however, if nom¬ 
inations are not made by the respective associations with¬ 
in a specified time. These limitations may actually give 
the class of people most directly interested greater control 
over the board which regulates their profession, but at 
the same time it considerably hampers the governor’s 
choice of qualified men. 

Another group of limitations under which the governor 
makes appointments to certain offices is that which nar¬ 
rows the list of eligible persons to those who have a special 
and peculiar partisan interest in the work to be carried 
on. Among the boards and officers subject to such restric¬ 
tions are the board of control of the Union Soldiers’ 


62 S. L. Ok. 1921, Ch. 7. 
62 aS. L. Ok. 1913, Ch. 22. 
62 bS. L. Ok. 1913, Ch. 157. 



94 


Government of Oklahoma 


Home 63 ; the board of trustees of the Confederate Soldiers’ 
Home 64 ; the custodians 65 of the two memorial halls in the 
state capital, one of whom must be a Confederate vet¬ 
eran, the other a Union veteran; the Confederate Mem¬ 
orial Commission 66 ; and the commissioner of pensions 67 , 
who must be a Confederate veteran or the descendant 
of one. 

Political considerations limit the governor’s power in re¬ 
gard to the appointment of only three boards. These are 
the board of affairs 68 , no more than two of the .three 
members of which may be of the same political party; the 
state election board, the two appointive members of which 
must be taken one from each of the leading parties; and 
the board of directors of the State Exposition 69 , no more 
than a majority of whom may be of the same party. 

The governor may choose men from any part of the 
state for the offices to which he appoints, except in the 
cases of the text-book commission and the board of trus¬ 
tees of the state teachers’ retirement and disability fund. 
It is provided that not more than one member of the 
text-book commission 70 may be from any single congres¬ 
sional district, and that no two members of the board of 
trustees of the state teachers’ retirement and disability 
fund 71 may be from the same county. 

The membership of another group of important boards 
and commissions is limited to those who by virtue of busi¬ 
es. L. Ok. 1917, Ch. 271, as amended by S. L. 1919, Ob. 146. 

64 S. L. Ok. 1910-11. Ob. 49. 

6B S. L. Okla. 1921, Ch. 27. 

W S. L. Ok. 1917, Ob. 115. 

67 S. L. Ok. 1919, Oh. 15. 

^R. L. Ok. 1910, Sec. 8079. 

69 S. L. Ok. 1917, Ch. 19. 

70 S. L. Ok. 1919, Ch. 12. 

71 S. L. Ok. 1919, Ch. 79. 



Chief Executive 


95 


ness experience or other connection with work related to 
that of any board or commission are especially qualified 
to perform its duties. For instance, the state mining 
bo'ard 72 must be composed of two coal miners, one 
mining engineer, one coal operator, and one hoisting en¬ 
gineer. Only farmers of at least five years’ experience 
after they have become twenty-one years old are eligible 
to become members of the state board of agriculture. 73 
The bank comlmissioner 74 must have had at least five 
years’ practical experience before his appointment, but 
cannot be connected with any bank after such appoint¬ 
ment. Such qualifications serve to insure to those af¬ 
fected by the work of each of the boards and commissions 
regulation by persons who have a personal knowledge of, 
and interest in, the duties connected with their office. 

But in addition to all these qualifications, which, after 
all, except in a few cases, do not seriously interfere with 
the governor’s free choice of competent men for the var¬ 
ious offices, there is one restriction which is extremely 
broad in its consequences, that of the necessity of having 
the senate’s advice and consent in appointing to practi¬ 
cally all the important positions. The governor must have 
thi,s senatorial approval in the selection of the members of 
twenty-three out of the total fifty-five officers and boards 
that he appoints; and among this twenty-three will be 
found nearly all the most important appointed admin¬ 
istrative agencies of the state government. This require¬ 
ment practically amounts to a division of responsibility 
between the governor and the senate, in the matter of ap¬ 
pointment; and hence to an opportunity for both to dis¬ 
claim responsibility. The governor might, for example, 


72 R. L. Okla. 1910, Sec. 3937. 
73 S. L. Okla. 1915, Ch. 109. 
74 S. L. Okla. 1913, Ch. 22. 



96 


Government of Oklahoma 


be held directly responsible for the highway policy of the 
state, for the manner in which industrial disputes are set¬ 
tled and for the financial policy in regard to constructing 
new buildings, buying supplies, and equipping state institu¬ 
tions, if he, and he alone, were responsible for the selec¬ 
tion of the highway commissioner 75 , the members of 
the state industrial commission, 76 and the members 
of the board of affairs 77 . But as they are now select¬ 
ed the public is at a loss to know whether the governor 
or senate has been responsible for the choice of any par¬ 
ticular men for these places. Other important boards in 
the selection of the incumbents of which the senate par¬ 
ticipates are: The board of agriculture 78 , the banking 

board, election board, the game and fish commission' 9 , 
the board of arbitration and conciliation, 80 the board 
of education 81 and others. Since it has so happened 
that the majority of the senate and the governor ‘have, 
in Oklahoma, been of the same political party every year 
since statehood, this limitation requiring senatorial advice 
and consent to gubernatorial appointments has not been 
so much of a handicap as it might otherwise have been. 
But even in view of this fact it is undoubtedly true that 
in many cases the chief executive has chosen officers 
who he knew would be acceptable to the senate in¬ 
stead of those whom he considered best qualified for 
the positions. 

The governor serves with two members appointed by 
him, land who hold office at his pleasure, on the boards 

75 S. L. Okla. 1915, Oh. 173. 

76 S. L. Okla. 1919, Ch. 14. 

77 R. L. Okla. 1910, Sec. 8079. 

78 S. L. Okla. 1915, Ch. 109. 

79 R. L. Okla. 1910, Sec. 3293. 

80 R. L. Okla. 1910, Sec. 3705. 

81 S. L. Okla. 1910-11, Ch. 47. 



Chief Executive 


97 


of regents of the University Preparatory School 8 " and 
of the Oklahoma Military Academy 83 . He also serves 
on the board of regents of the School of Mines at Wil- 
burton 84 . The superintendent of public instruction is an 
ex officio member of this board, however; so, although 
the governor appoints three other members who serve at 
his pleasure, he cannot be held entirely responsible for its 
work. H|e serves, too, on the Americanization commis¬ 
sion 85 , the other members of which he appoints at will. 
While membership in these boards places the governor in 
a position where he may definitely have a part in their 
work, it is probable that a better plan would be to have 
him appoint all members. Under this arrangement he 
would be in a position to demand efficient work from 
the boards but would not at the same time be burdened 
with their detailed work. 

The governor appoints persons to fill vacancies in elect¬ 
ive state offices and in the office of county commissioner, 
in addition to other powers of appointment granted 
him 80 . 

POWER OF REMOVAL 

No constitutional provision is made a,s to the removal 
of appointive officers, and the methods of removal pro¬ 
vided for in the statutes creating such offices are consider¬ 
ably varied. A general law provides that the governor 
may remove any officers appointed by him, in case of in¬ 
competency, neglect of duty, or malfeasance in office 87 . 
Another law, which refers to all officers, provides that 

82 S. L. Okla. 1919. Ch. 118. 

83 S. L. Okla. 1919, Ch. 151. 

84 S. L. Okla. 1919, Ch. 178. 

85 S. L. Okla. 1919, Ch. 315. 

86 R. L. Okla. 1910, Sec. 4278. 

87 R. L. Okla, 1910, Sec. 8052. 



98 


Government of Oklahoma 


“every office shall become vacant on the happening of 
either of the following events before the expiration of the 
term of such office.” The events named are, death or resig¬ 
nation of the incumbent, removal from office or failure 
to qualify, when a judgment is obtained against the in¬ 
cumbent on his official bond, ceasing to be a resident of the 
district for which he was elected or appointed, conviction 
of any infamous crime or any offense involving breach 
of his official oath. The fact by virtue of which a vacancy 
occurs is determined by the authority empowered to fill 
the vacancy 85 . It would seem, however, that this law could 
not, under the constitution, apply to officers, subject to 
impeachment, for an exclusive method is provided for their 
removal 89 . 

A number of officers are appointed to serve “during the 
pleasure of the governor 90 ”, or to hold office “at the 
will of the governor 91 ”. Members of the board of 
public affairs may be removed whenever in the opinion 
of the governor “the public interests miay be thereby 
s'ubserved 92 ”. When provisions such as these govern the 
executive's power of appointment, he may remove his ap¬ 
pointees at any time. The Oklahoma courts have held in 
several decisions that an executive officer may exercise the 

88 R. L. Okla. 1910, Sec. 4276. 

89 See above. 

90 Game and Fish Commission, R. L. Okla. 1910, See. 3293: 
Secretary of Board of Vocational Education, S. L. Okla. 1917, Ch. 
155; Commissioner of Highways. S. L. Okla. 1915, Ch. 173; Pardon 
and Parole Attorney, S. L. Okla. 1919, Ch. 66; Fraternal Insurance 
Board, Ibid, Ch. 67. 

91 Board of Control of Military Training, S. L. Okla. 1917, 
Ch. 246; Board of Regents of University Preparatory School. S. 
L. Okla. 1919, Ch. 118; Board of Regents of Oklahoma Military 
Academy, Ibid, Ch. 151. 

92 R. L. Okla. 1910, Sec. 8079. 



Chief Executive 


99 


power of removal unless expressly prohibited, for the ap¬ 
pointive power carries with it the inherent power of re¬ 
moval, unless prohibited by law 93 . 

A few of the statutes which create new appointive offices 
make no provision either as to the length of term or the 
power of removal 94 . In such case, too, the appointee 
holds at the pleasure of the appointing power 95 . Still 
other statutes declare definitely that the officers appointed 
thereunder may be removed at any time by the appointing 
power 89 . In this situation there can be no question but 
that the governor may remove his appointees whenever 
in his judgment he deems it best to do so. 

Officers who serve under provisions of the nature above 
discussed may be removed without notification or a hear¬ 
ing. The mere appointment of a successor removes the 
acting officer 97 . But where, as in the case of most ap¬ 
pointive offices in Oklahoma, the officer is appointed for 
a definite term, this fixation of term constitutes an inhibi¬ 
tion on the freedom of the executive in exercising the re¬ 
moval power. The fixation of term does away with the 
inherent quality of the governor's right of removal. A 
law 98 giving him the power of removal in all cases, under 
certain circumstances, has, however, provided him with a 
method of removing officers with fixed terms before the end 
of their terms. Even under this provision they cannot be re- 

93 Cameron v. Parker, 2 Okla. 277, 38 Pac. 14; Ardmore v. 
Sayre, 54 Okla. 779, 154 Pac. 356. 

94 Board of Commissioners for the promotion of Uniform State 
Laws, S. L. 1917, Ch. 115; State Cemetery Board, S. L. Okla. 1919, 
Ch. 153. 

95 Childs y. State, 4 Okla. Cr. 474, 113 Pac. 545. 

96 Game Warden, R. L. Okla. 1910, Sec. 3304; Fire Marshal, S. L. 
Okla. 1910-11, Ch. 46. 

97 Touart v. State, 56 So. 211. 

®*R. L. Okla. 1910, Sec. 8052. 



100 


Government of Oklahoma 


moved summarily. The officer must have notice and 
hearing, and the existence of a cause for removal must 
be determined after notice to the officer and after he 
has had an opportunity to be heard". 

The statutes providing for appointment by the governor 
of the bank commissioner 100 , the members of the 
board of education 101 , the secretary of the insurance 
board 102 , and others, state that these officers cannot be 
removed except for cause, and in several instances specify 
what shall constitute cause for removal 103 . The rule 
that notice and a hearing must be given before an appoin¬ 
tive officer with a fixed term can be removed applies with 
even more force to those officers concerning whom it is 
definitely stated that they may be removed only for cause. 101 
And when the causes are definitely stated an officer 
may not be removed for any other reasons. 105 Even 
though a hearing is necessary, however, tlhe governor is 
the exclusive judge, so far as the courts are concerned, of 
the sufficiency of the proof of the charges, and his findings 
are not reviewable by any court. 106 The granting to the 
governor of the power to remove for cause and then allow¬ 
ing him to be the sole judge of the sufficiency of the cause 
does not deny due process of law to the removed official. 
The officer has no right of property in the office and a hear- 

"Porter v. Murphy, 104 S. W. 058 (Indian Territory Case.) 

i00 S. L. Okla. 1913, Ch. 22. 

10t S. L. Okla. 1910-11, Ch. 47. 

M2 S. L. Okla. 1915, Ch. 174. 

103 Members of the Board of Embalming, according to R. L. Okla. 
1910, Sec. 6S55, may be removed for neglect of duty, incompetenc.v. 
or improper conduct; members of the State Industrial Commission, 
according to S. L. Okla. 1919, Ch. 14, may be removed for ineffici¬ 
ency, neglect of duty, or misconduct while in office. 

104 Touart v. State, 56 So. 211. 

105 Dullam v. Willson, 53 Mich. 392; 51 Am. Rep. 128. 

106 Cameron v. Parker, 2 Okla. 277, 38 Pac. 14. 



Chief Executive 


101 


ing before the court previous to his removal is not necessary 
to make that removal valid, if the power of removal is 
rested by statute in an executive official. 107 

In one case a statute providing for an appointive officer 
makes it necessary to have a public hearing before such 
officer may be removed. This applies to the state indus¬ 
trial commission, a member of which may be removed only 
after a copy of the charges against him has been present¬ 
ed to him, and a public hearing has been granted him up¬ 
on at least ten days’ notice. 108 In regard to a single board, 
the state banking board, and a single officer, the bank 
commissioner, the persons directly affected by the work of 
the officer have a voice in his removal. Two-thirds of the 
members of the state bankers’ association “shall have the 
authority to make recommendations to the governor in ex* 
ercising the power of removal, and due consideration shall 
be given by the governor to the recommendation .... in 
ascertaining the grounds for removal of the bank com¬ 
missioner and the members of the banking board.” 108a 

The governor’s general powers in regard to removal, 
then, are fairly broad. Appointive officers without 
definite terms may be summarily removed unless express 
provision is made otherwise, and such officers with 
fixed terms may be removed, after notice and a hear¬ 
ing, for incompetency, neglect of duty, or malfeasance 
in office. Most of the laws which provide for appoint¬ 
ive officers contain provisions concerning their removal. 
These provisions are not uniform, but in most cases the 
rules just stated apply. Although the governor’s powers 
in regard to the removal of appointive officers are broad, 
he has no power of removing elective state officers. 

m Ibid. 

,08 S. L. Okla. 1919, Ch. 14, Sec. 15. 

1083 S. L. Okla. 1913, Oh. 22. 



102 


Government of Oklahoma 


OTHER CONTROL OVER STATE OFFICIALS. 

The terms of office of practically all the appointive 
administrative officials are determined by the legisla¬ 
ture. Here again, in a number of cases, the governor 
may be prevented because of legislative action from ap¬ 
pointing those whom he considers best qualified for the 
position. The members of thirteen boards and com¬ 
missions serve for terms longer than that of the govern¬ 
or, and on all of these agencies part of the members re¬ 
tire at one time and part at another, thus making it 
impossible for the governor ever to be responsible for 
the entire personnel of the board or commission. The 
board of education, the board of agriculture,, and the 
state industrial commission are the most important 
agencies the selection of which is so limited. The mem¬ 
bers of four boards of regents of state educational insti¬ 
tutions and of three examining and licensing boards also 
hold office longer than does the governor who appoints 
them. 109 

The salaries and duties of administrative officials are 
both fixed by the legislature rather than by the ad¬ 
ministrative head. The governor is not given any au¬ 
thority to hire a cheaper man than the legislature 
thought necessary for one position and divert the sur¬ 
plus from that office to a needed increase in the salary 
of an expert employed in some other department, or 
otherwise to exercise his discretion in spending money 
for administrative affairs. 

109 Board of Regents of tlie University of Oklahoma, S. L. Okla. 
1919, Ch. 293; Board of Regents of the Oklahoma College for Women, 
S. L. Okla. 1919, Ch. 295; Board of Regents of Miami School of 
Mines, S. L. Okla. 1919, Ch. 302; Board of Regents of the Colored 
Agricultural and Normal University, S. L. Okla. 1919, Ch. 303: 
Board of Veterinary Medical Examiners, Board of Dental Examiners, 
S. L. Okla. 1919, Ch. 41; Board of Pharmacy, S. L. Okla. 1919, Ch. 76. 




Chief Executive 


103 


Although many officers and boards are appointive, 
there is still a large group of administrative agencies 
composed of state officers acting in an ex officio capacity. 
The governor serves on the more important of these 
boards, but has no more influence over the work they 
accomplish than does any other member of a particular 
board. The board of equalization, 110 the chief duties 
of which are to assess public utilities and to adjust 
tax levies as between counties, is composed of the gov¬ 
ernor, the secretary of state, the auditor, the examiner 
and inspector, the treasurer, the attorney-general, and 
the president of the board of agriculture. The com¬ 
missioners of the land office 111 are responsible for a very 
important part of the work of the state, that of admin¬ 
istering affairs connected with the leasing, renting, and 
selling of state school lands and other public lands, and 
also of managing the state educational endowment and 
the farm loan funds. The governor, the superintendent of 
public instruction, the auditor, the president of the board 
of agriculture, and the secretary of state comprise this 
commission. The governor serves with the president of the 
university of Oklahoma and the superintendent of public 
instruction on the geological commission 112 ; with the 
president of the board of agriculture and the direc¬ 
tor of the extension division of the agricultural and 
mechanical college on the market commission, 113 and 
with the same officers on the advisory board to the state 
farm and industrial council. 111 By virtue of his mem¬ 
bership on these ex officio boards, some of which exercise 
important functions, his power might seem to be en- 


110 Const., Art. X, Sec. 21. 

1 "Const., Art. VI, Sec. 32. 

112 R. L. Okla. 1910, Sec. 8125. 
m S. L. Okla. 1919, Ch. 280. 
1M S. L. Okla. 1919, Ch. 91. 



104 


Government of Oklahoma 


larged in some degree. Since the other members of 
these boards, however, are officers over whom he has no 
control and who are in no way responsible to him for 
their work as members of the board, he cannot be held 
responsible for the effectiveness or ineffectiveness of the 
work carried on. 

In addition to these ex officio boards on which the 
governor serves, there are several others which perform 
administrative functions, but over which he has no in¬ 
fluence, either by membership thereon or by selection of 
the personnel thereof. The warehouse commission 115 , 
for example, is composed of the president of the board 
of agriculture, the state bank commissioner, and the 
state insurance commissioner ; the attorney general acts 
as bond commissioner; and three professors of the ag¬ 
ricultural tend mechanical college constitute the live¬ 
stock registry board of inspection. The superinten¬ 
dent of public instruction, tlhe president of the board of 
agriculture, and the state auditor are ex officio mem¬ 
bers of the board of pardons which the laws of 1910 116 pro¬ 
vide for, and which, so far as the statutes are concerned, is 
still in existence, but which in actual fact has been render¬ 
ed powerless by a decision of the court to the effect that 
the entire pardoning power rests with the governor. 117 The 
administrative work carried on by these boards over 
which the chief executive has no control is not sufficiently 
important to greatly handicap him, but could be carried 
on just as effectively if incorporated in a unified system. 

Resignations of state officers, of members of the leg¬ 
islature when that body is not in session, of officers of 
districts of the state, and of county commissioners, are 

115 S. L. Okla. 1919, Ch. 270. 

13 *R. L. Okla. 1910, Sec. 4627. 

11,7 Ex parte Ridley, 3 Okla. Cr. 350, 106 Pac. 549. 



Chief Executive 


105 


made to the governor. ( 117ai ) Vacancies in state offices, 
in newly organized counties where no election has been 
held, and in all boards of county commissioners are 
filled by appointment by the governor. 1 8 

In summary, then, the governor’s authority in re¬ 
gard to state administration as carried on by state offi¬ 
cials is limited very greatly by the fact that the business 
of conducting a large part of such affairs is placed in the 
hands of elective officers over whom he has almost no 
control, and by the fact that his power in regard to the 
agencies which he appoints is cut short in almost every 
particular by legislative enactment. If he is to be in a 
position where he may be held responsible, his control 
over administrative agencies must be less hampered by 
legislative restriction. 

POWER OVER LOCAL ADMINISTRATION. 

In regard to local administration the governor’s powers 
are not extensive. He may direct the attorney general 119 
to investigate cases of misconduct of all county, city, 
and municipal officers, as well as of all state offi¬ 
cers not subject to impeachment. 120 Municipal charters 
must be submitted to him after being voted on by the 
people, for his approval. 121 He shall approve any 
charter submitted to him “if it shall not be in conflict 
with the Constitution and laws of this State.” The gov¬ 
ernor must also approve all amendments to municipal 
charters. The question of just what power this places in 
his hands is discussed in the chapter on administrative 
control over cities. 

The governor, also, performs certain ministerial du- 


117 aR. L. Okla. 1910, Sec. 4277. 

1W R. L. Okla. 1910, Sec. 4278. 
m S. L. Okla. 1917, Ch. 205. 

120 See Ch. XXII for further discussion of this matter. 
^Const., Art. XVIII, Sec. 3. 



106 Government of Oklahoma 

ties 121 in connection with the removal of county seats 
and the formation of new counties. 123 

These few provisions comprise the governor’s power 
over locial administration. Ohly one of them, the at¬ 
torney general’s law, gives him any real administrative 
power. 

SPECIAL POWERS AND DUTIES. 

The governor’s constitutional power to preserve inter¬ 
nal peace and safety is to be found in two provisions: 
first, that he shall be “Commander-in-Chief of the Mili¬ 
tia of the State * * * and may call out the same to ex¬ 
ecute the laws, protect the public health, suppress insur¬ 
rection, and repel invasion,” 114 and second, that “he 
shall be a conservator of the peace throughout the 
State.” 125 

The constitution gives to the legislature the duty of 
providing for organizing, disciplining, arming, maintain¬ 
ing, and equipping the militia. 126 This body has seen 
fit, however, to provide that the governor shall have large 
powers in this matter, such powers, indeed, as give him 
full control of the military forces, subject to certain basic 
provisions of the legislature. The laws provide that he 
shall have supreme command of the military forces of the 
state while in the service of the state, subject to the laws 
of the United States. He authorizes the formation of new 
units of the militia. 127 

The governor exercises his power as commander-in¬ 
chief through the adjutant general, whom he appoints 
and who serves at his pleasure. 128 This officer acts as 

122 Const., Art. XVII, Sec. 6, S. L. Ok. 1910-11, Ch. 40. 

123 See Ch. XIX, for a discussion of these powers- 

124 Const., Art. VI. Sec. 6. 

125 Const., Art. VI, Sec. 8. 

^Const., Art. V. Sec. 40. 

,27 S. L. Okla. 1917, Chs. 193 and 194. 



Chief Executive 


107 


military advisor to the governor and supervises the 
national guard under his direction . 129 The gov¬ 
ernor may also appoint an honorary staff, to consist of 
such honorary aides as he may desire to commission . 130 

The governor is authorized and required to order on 
duty the national guard or any necessary part thereof “in 
case of war, invasion, insurrection or breach of the peace 
or imminent danger thereof, or any forcible obstructing 
of the execution of the laws, or reasonable apprehen¬ 
sion thereof, and at all times he may deem necessary.” 
The civil authorities, district or county judge, coun¬ 
ty sheriff or v city mayor, may call upon the com¬ 
mander-in-chief for aid in dealing with any situation in¬ 
volving breach of the peace, tumult, riot or resistance to 
the process of the state or imminent danger therof, or in 
any case of public disaster or calamity. The commander- 
in-chief may order military aid to any such municipality 
if in his judgment the situation seems to demand it. 
The commanding officer of any militia detailed to such 
location is required to report to the civil officials asking 
for aid and cooperate with and be subject to the civil 
authorities while on duty there, although he is permitted 
a certain discretion as to methods . 132 It is the duty 
of such commanding officer to render all assistance in 
his power to preserve the peace and execute the laws of 
tihe state . 133 

The powers of the governor when the militia has been 
called out and is in action in a particular locality are 
limited to a considerable extent by the provisions cf the 

128 Ibid. 

129 Ibid. 

130 Ibid. 

131 R. L. Okla. 1910, Sec. 3904. 

132 Ela v. Smith, 5 Gray 121 : 06 Am. Dec. 356; State v. Coit, 
8 Ohio. S. & C. P. Dec. 62. 

133 R. L. Okla. 1910, Sec. 3908. 



108 


Government of Oklahoma 


constitution that “the privilege of the writ of habeas 
corpus shall never be suspended,” 134 and “the mil¬ 
itary shall be held in strict subordination to the civil 
authorities.” 135 In the case of Fluke et al. v. Canton 13 * 
the court subscribed to a statement in a Kentucky 
case 137 in which provisions similar to those in the 
Oklahoma Constitution were construed. “We are not will¬ 
ing to concede that in any exigency that may arise the 

military is superior to the civil authorities.Nor dc 

we believe that the time will ever come when the military 
forces of the state, acting under and in obedience to the 
civil laws of the state, will not be able to control under 
the authority conferred by these laws any situation that 
may present itself.” The court stated further in the Fluke 
case, that “When the convention was in session for the 
purpose of framing a constitution for the proposed state 
of Oklahoma, the holding of the Supreme Court of the 
state of Colorado, In re Moyer, supra,” 138 (to the effect 
that in certain emergencies the civil law may be suspended 
by military orders) ”was fresh in their minds. In view of 
that holding, Section 10 of Article 2 (Bill of Rights) of 
the Constitution, which provides that ‘the privilege of the 
writ of Ihlabeas corpus shall never be suspended by the au¬ 
thorities of this state/ was incorporated in said constitu¬ 
tion evidencing a settled purpose as expressed in Section 
14, Article 2, supra, that ‘the military shall be held in 
strict subordination to the civil authorities/ ” From this 
statement it seems obvious that the Oklahoma courts de¬ 
part from the general rule, 139 that the power to order out 
military forces implies the right to suspend the writ of 

134 Const., Art. II, Sec. 10. 

13 Vonst.. Art. IT. Sec. 14. 

136 31 Okla. 718, 123 Pac. 1049. 

137 Franks v. Smith. 142 Kv. 232. 134 S. W. 484. 

,38 35 Colo. 159, 85 Pac. 190. 

139 See 45 L. R. A. 832, Note. 




Chief Executive 


109 


habeas corpus, and agree with the Kentucky case just 
cited that the writ may never be suspended. 

The governor may under certain conditions call out the 
militia without request from any civil officer, and with¬ 
out placing them under the orders of the civil authori¬ 
ties in the territory into which they are sent. 140 In 
the case of In re Boyle’ 41 , the court decided that it 
was the governor's duty to act without an application 
from the civil authorities when it appeared that for any 
reason these officers were not doing their duty. The 
governor acts in this case in his capacity as chief ex¬ 
ecutive and in the exercise of his duty of seeing that 
the laws of the state are faithfully executed, and not as 
commander-in-chief of the militia; hence the sending in 
of troops without the request of the civil authorities of 
the locality does not constitute a subordination of the 
civil to the military power. The military power in such a 
case is subordinate to the civil power in every emergency 
that arises during active service. Those who exercise 
military power in supressing an insurrection still remain 
liable for any abuse of their authority. 142 

From the discussion of the military powers of the gov¬ 
ernor, then, it will be seen that so far as the consti¬ 
tution allows the military power to extend the governor 
has supreme command of it. The extent of his power, 
however, is greatly limited, as compared with that pos¬ 
sessed by the chief executives in other states, by consti¬ 
tutional provision. The governor may not suspend the 
writ of habeas corpus in any case; he may send suffi¬ 
cient armed forces into a territory to quell a riot and 
insure the proper execution of the laws, but the military 
forces can exercise no powers beyond those of ordinary 

140 Franks v. Smith, 142 Ky. 232, 134 S. W. 484. 

141 6 Idaho 609, 57 Pac. 706. 

14, See 45 L. R. A. (ns) 1014-1020, and Fluke v. Canton, 31 Okla. 



110 


Government of Oklahoma 


peace officers; he may send forces to aid civil authorities, 
upon their request, and then the military power must act 
under the orders of the civil authorities, and is at all 
times amenable to civil process for unauthorized or ille¬ 
gal conduct. 

SPECIAL POWERS IN ARRESTING CRIMINALS 

The governor is authorized to offer, in his discretion, 
a reward not exceeding one thousand dollars for the ar¬ 
rest and conviction of any person who commits or at¬ 
tempts to commit a felony. This reward may be paid to 
any agency making the arrest in case conviction is se¬ 
cured, and in case a person forcibly resists arrest and 
is killed because of such resistance, the reward may be 
paid in the discretion of the governor the same as if 
conviction had been secured. 143 

THE GOVERNOR'S PARDONING POWER 

The constitution places the pardoning power in the 
governor. 144 He has power to “grant, after con¬ 
viction, reprieves, commutations, paroles, and pardons for 
all offenses, except cases of impeachment, upon such con¬ 
ditions and with such restrictions and limitations as he 
may deem proper, subject to such regulations as may be 
prescribed by law." The constitution also provides that 
he shall communicate to the legislature, at each regular 
session, certain information concerning each pardon he 
grants. 

The legislature of 1907 made provision for a board of 
pardons, whose recommendations should be binding 
upon the governor. 145 In the case of Ex parte Rid- 

143 S. L. Old a. 1915, Oh. 13. 

’“Const., Art. VI, Sec. 10. 

“Laws 1907-08. Ch. 62. It. L. Okla. 1910, Secs. 4627 to 4638. 

718, 123 Pac. 1049. 



Chief Executive 


111 


ley, 146 the court (held that “the legislative act creat¬ 
ing the board of pardons is clearly unconstitutional and 
void.” The argument for this decision was that by means 
of the act the legislature attempted to confer pardon¬ 
ing power upon other state officers, the doing of 
which was an unconstitutional interference with and in¬ 
fringement upon the executive power. The court interpret¬ 
ed the constitutional provision to the effect that the gov¬ 
ernor may grant pardons upon such conditions and with 
such restrictions and limitations as he may deem proper, 
subject to such regulations as may be prescribed by law, 
to mean that the legislature might only provide regula¬ 
tions relative to the manner of applying for pardons. 
Hence the portions of the 1908 act which refer to a 
board of pardons are invalid. The 1919 legislature pro¬ 
vided for a bureau of pardons and paroles to assist the 
governor in exercising his power of granting clemency 
to convicted persons. At the /head of this bureau is the 
pardon and parole attorney, who is appointed by the 
governor and holds office at his pleasure. 147 The 
purpose of this bureau is to investigate applications for 
pardons, and supply information to the governor, but it 
does not act as a recommendatory body. 

It has been held in other states under provisions sim¬ 
ilar to those in the Oklahoma constitution that a statu¬ 
tory provision empowering the supreme court to stay 
execution of death sentence pending appeal is not an 
interference with the right of pardon and parole vested in 
the executive department. 148 A law giving to prison¬ 
ers certain deductions from their term of imprisonment 
for good behavior is mot unconstitutional as an infringe¬ 
ment upon the prerogative of the governor to pardon. 

14e 3 Okla. Cr. 350, 106 Pac. 549. 

147 S. L. Okla. 1919, Ch. 66. 

148 Parker v. State, 135 Indiana 534, 35 N. E. 179, 23 L. R. A. 859. 



112 


Government of Oklahoma 


It does not restrict or interfere with this power in any 
way, but simply fixes the term of imprisonment in cer¬ 
tain cases and on certain conditions, and thus enters into 
and becomes a part of the judgment and sentence of the 
court. 149 

As to the court’s power in pardoning, it has been held 
again that the pardoning power rests solely and exclu¬ 
sively in the governor. County judges, county attorneys, 
and sheriffs, have no power to pardon or parole persons 
convicted of crime in the courts of the state. Where a 
defendant sentenced to six months imprisonment in the 
county jail is released at the expiration of one month, 
without authority of law, by order of the county court, 
the time of his absence cannot be considered as spent in 
jail in satisfaction of the sentence. 160 

The governor, although the constitution empowers him 
to grant “after conviction, reprieves, commutations, pa¬ 
roles, and pardons for all offenses except in cases of im¬ 
peachment,” can not go further in his pardoning pow¬ 
er than to rem,t the penalty imposed. A pardon grant¬ 
ed by the governor, therefore, will not release the con¬ 
vict from the liability to pay the costs, because the rights 
to such cos^s are vested rights which cannot be disturbed 
or abridged or lessened by any pardon the governor may 
grant. 151 

In the case of Henry v. State 152 the court dis¬ 
cussed at some length the extent of the power of the 
governor to exercise his own discretion in granting par¬ 
dons. The court held that he could not exercise this pow¬ 
er either directly or indirectly as a means of legislation, 
for the provision making the three departments separate 

149 Ex parte Ridley. 3 Okla. Cr. 350, 106 Pac. 549. 

150 Ex parte McClure, 6 Okla. Cr. 241, 118 Pac. 591. 

,51 Terrell v. State, 11 Okla. Cr. 529, 148 Pac. 822. 

V2 10 Okla. Cr. 369, 136 Pac. 982. 



Chief Executive 


113 


and equal is as much a part of the fundamental law as the 
provision investing the governor with the pardoning pow¬ 
er. The point under discussion was as to whether or 
not the governor could constitutionally pardon all of¬ 
fenders sentenced with capital punishment, because of 
conscientious scruples against such punishment. It was 
argued that the setting aside of all death penalties was 
in the nature of legislation. In so setting aside all death 
penalties, too, the governor not only goes outside his 
sphere of action in that he encroaches on the domain of 
another and equal department of the government, but in 
that he violates his constitutional oath to obey the consti¬ 
tution of the state. The court, in continuing its argument, 
remarked that allowing the governor unlimited discretion 
in exercising the pardoning power concedes him the right 
to suspend the execution of any provision of law of which 
he may not approve. Bishop’s new criminal law 153 is 
quoted to the effect that the governor is not justified in 
exercising the pardoning power in pursuance of his own 
private views, but that he should act upon public consid¬ 
erations. “The granting of pardons (commutations or 
paroles) is discretionary in its nature; therefore it is nec¬ 
essarily the more open to control by the impeaching pow¬ 
er.” The court, then, warns the governor that his action 
in pardoning all persons convicted of murder and sen¬ 
tenced to capital punishment is an impeachable offense, 
but does not offer any suggestion as to what legal remedy 
might lie in case the governor violated his authority under 
the pardoning power, as the court construed such power. 

The governor may use his discretion as to the degree of 
clemency he is to exercise in any given instance. An un¬ 
conditional pardon reaches both the punishment pre¬ 
scribed for the offense and the guilt of the offender; it 


*«Vol. I, pp. 117, 178-181, 559, 561. 



114 


Government of Oklahoma 


obliterates in legal contemplation the offense itself, and 
hence its effect is to make the offender a new man. ,H The 
governor may, however, grant a parole or conditional par¬ 
don. The conditions may be any that are capable of per¬ 
formance and are neither illegal nor immoral. 155 The terms 
and conditions of the parole must be accepted by the party 
convicted, however, before they can be made binding up¬ 
on him. 156 A parole simply suspends sentence during 
the liberty thus granted. Upon a violation by a convict 
of the terms and conditions of Ibis parole, the governor 
has power to revoke such parole and direct that the con¬ 
vict be rearrested and returned to custody. Section 5970 
of the Revised Laws of 1910 gives the governor power 
to grant a reprieve or to suspend the execution of a death 
sentence while a writ of error is pending. In interpreting 
this statute the courts have held that the governor may 
grant a reprieve to a person sentenced to death pending 
the perfecting of an appeal in the case. 157 The gov¬ 
ernor may restore to citizenship any person convicted 
of any offense committed against the laws of tihe state, 
upon cause being shown, either after the expiration of 
any sentence or after pardon. 158 

In the absence of the governor from the state, or be¬ 
cause of any other disability on his part to perform 
the duties of his office, the lieutenant governor be¬ 
comes acting governor and may exercise any of the func¬ 
tions of the governor. A pardon granted by the lieu¬ 
tenant governor in the absence of the governor from the 
state is a valid and effectual pardon, and the governor’s 

154 Ex parte Crump, 10 Okla. Cr. 133. 135 Pae. 428. 

156 Ex parte Horine, 11 Okla. Cr. 517, 148 Pac. 825. 

156 Ex parte Taggert, 12 Okla. Cr. 439, 158 Pac. 288; Ex parte 
Hawkins, 10 Okla. Cr. 396, 136 Pac. 991. 

167 Opinion of the Judges, 3 Okla. Cr. 315, 105 Pac. 684. 

1B8 R. L. Ok’a. 1910, Sec. 4039. 



Chief Executive 


115 


order, issued later, purporting to revoke such pardon is 
a nullity, for a pardon, when delivered, is irrevocable. 359 
But a parole which may have been granted by the 
lieutenant governor prior to tlhe governor's return to 
the state, but which was not delivered to and accepted 
by the paroled convict until after the governor had ar¬ 
rived within the borders of the state is not a valid par¬ 
don, and may be revoked by the governor. 160 

The judge of a court at which a conviction requiring 
the judgment of death is had, must, immediately after the 
conviction, transmit to the governor, by mail or other¬ 
wise, a statement of the conviction and judgment, and 
of the testimony given at the trial. 361 A section giv¬ 
ing the governor power to require the opinion of any 
of the judges of the criminal court of appeals upon the 
statement thus furnished was held to be unconstitutional, 
as an unwarrantable encroachment by the legislature 
upon the judiciary, in that it placed non-judicial duties 
on that department of government. 162 

The provisions governing pardons which are in effect 
at present, then, consist of the section of the constitu¬ 
tion conferring the pardoning power on the governor 
and of a few legislative acts concerning the exercise of 
this power. The governor's pardoning power is exclusive. 
The exercise of his discretion in this matter cannot be 
regulated by the legislature except as that body may pre¬ 
scribe rules concerning applications for pardons, or may 
impeach the executive for abuse of his power. The courts 

188 Ex parte Crump, 10 Okla. Cr. 133, 135 Pac. 428; Stewart v. 
State, 11 Okla. Cr. 400, 146 Pac. 921; Ex parte Cullens, 11 Okla. 
Cr. 644, 150 Pac. 90. 

lfl0 Ex parte Hawkins, 10 Okla. Cr. 396, 136 Pac. 991. 

W1 R. L. Okla. 1910, Sec. 5968. 

M *R. L. Okla. 1910, Sec. 5969; In re Opinion of the Judges, 25 

Okla. 76, 105 Pac. 325. 



116 


Government of Oklahoma 


cannot inquire into his reasons for pardoning particular 
individuals, and cannot regulate his judgment in acting 
as to any specific class of cases. Abuse of his discretion¬ 
ary power is only punishable by impeachment. 

governor’s powder of conducting interstate business 

“The Governor ..shall conduct in person or in 

such manner as may be prescribed by law, all intercourse 
and business of the State with other states and with the 
United States.” 163 Under this provision of the constitu¬ 
tion the legislature has required that no armed military 
force from another state, except such force be a part of the 
United States army, or acting under the authority of the 
United States, be permitted to enter this state without 
the permission of the governor. 164 Under this provi¬ 
sion, too, the governor has been given authority to de¬ 
liver up criminals to other states upon proper requisi¬ 
tion being made, and to demand fugitives from justice 
from other states into which they have fled. 165 In 
the case of Ex parte Owen 166 the court held thlat no 
person can be surrendered by one state to another except 
according to the provisions of the Constitution and 
laws of the United States, for the power to surrender 
criminals as a matter of comity is not possessed by the 
states of the Union. Upon the executive authority of a 
state rests the duty of determining whether or not a de¬ 
mand for the return of a fugitive from justice is made 
in compliance with law, and whether or not the 

lt8 Const., Art. VI, Sec. 8. 

184 R. L. Okla. 1910, Sec. 3900. 

™ 5 R. L. Okla. 1910, Sec. 6081 to 6094. 

,a *10 Okla. Cr. 284, 136 Pac. 197. 




Chief Executive 


117 


person whose return is sought is a fugitive from justice; 
but his decision on these points is reviewable by the 
courts in habeas corpus proceedings. The laws of Okla¬ 
homa concerning extradition are framed to include what 
the laws of the United States and the decisions of the 
federal courts require in order that extradition proceed¬ 
ings shall be legal. 167 The laws of the United States 
on this subject, however, read that “it shall be the duty” 
of the executive to deliver up fugitives, while the Okla¬ 
homa laws state that the person charged “must_be 

delivered up by the governor of this state.” Some ques¬ 
tion has arisen as to whether or not state laws can make 
any further requirements of any kind other than those 
made by an act of Congress. 168 In any event, the extent 
to which the legislature of Oklahoma can control the 
governors discretion in this matter is somewhat doubt¬ 
ful, as the state constitution places the sole power of 
conducting interstate (affairs in the hands of the governor. 
The governor may formally demand the extradition of 
criminals who have fled from this state to other states. 169 

MISCELLANEOUS. 

The constitution requires that “the governor shall com¬ 
mission all officers not otherwise commissioned by law.” 
Such commissions shall be signed by the governor and 
attested by the secretary of state/ 0 In determining 
who is entitled to the records and papers of an office, 


M7 Compare R. L. Okla. 1910, Secs. 6081 to 6094 with quotations 
trom federal laws and cases in 10 Okla. Cr. 284. 136 Pac. 197. 

168 See 28 L. R. A. 802. note. 

1CT See Ex parte Owen, 10 Okla. Cr. 284, 136 Pac. 197. 

170 Const., Art. VI, Sec. 13. 




118 


Government of Oklahoma 


in a mandamus proceeding, the court will not go behind 
the governor’s commission. 111 

Upon the governor is placed the duty of appointing 
and commissioning in each county such notaries public as 
may be required. 172 As these officers are not admin¬ 
istrative officers, placing the power of appointing them 
in the hands of the governor does not enhance his con¬ 
trol over state administration. 

Whenever a vacancy shall occur in the office of sen¬ 
ator from Oklahoma in the Congress of the United States, 
the governor shall appoint a person to fill the office until 
“the first primary and general election in the state occur¬ 
ring thereafter.” 173 

The governor must keep a permanent record of all 
his official executive acts and a separate permanent 
record of all his military acts. 174 

Summarizing the authority, then, which is vested in 
the governor by virtue of the special powers and duties 
placed upon him, it may be said that there are several 
which add greatly to the importance of the position, but 
do not give him any large powers of exercising energetic 
and constructive control as chief executive. 

CRITICISMS AND RECOMMENDATIONS. 

From our study of the position of the chief executive 
so far we have seen that he is concerned with the follow¬ 
ing functions: the making of law, the planning of the 
budget, certain control over state and local administra¬ 
tion, the power of pardon and parole, the carrying on of 


171 Ewing v. Turner, 2 Okla. 94. 35 Pac. 951. 
172 R. L. Okla., 1910, Sec. 4240. 

173 S. L. Okla. 1915, Ch. 49. 
n4 R. L. Okla 1910, Secs. 8053-4. 



Chief Executive 


119 


interstate business, the duty of acting as commander-in¬ 
chief of the militia, and a few others. 

THE PLACE OF THE EXECUTIVE IN LAW MAKING. 

We have seen that the governor has certain constitu¬ 
tional and legal methods of influencing legislation. These 
are, sending messages to the legislature, calling special 
sessions at which only those measures specified by him 
may be considered, and the veto power. He also may in¬ 
fluence legislation indirectly through his leadership of 
his party, his power of appointment, and his ability to 
attract publicity to his program. 

All these powers, however, are not sufficient to make 
him really responsible for the initiation and carrying 
through of public policy. While the people look to him 
as the one to express their wishes and while he bases 
his campaign upon large questions of public policy, he 
can only in a weak and feeble way help toward making 
these policies become law. The legislature may ignore, 
change, or vote against them, without a chance on his 
part of testing whether the people were really in earnest 
in electing him or whether they prefer other policies ad¬ 
vocated by the legislature. Manifestly, unless the gov¬ 
ernor can definitely introduce measures into the legisla¬ 
ture, fight for them within that body, and appeal to the 
people in case the legislature ignores them or votes 
against them, he can in no sense be held responsible to 
the people for what he stood for during his campaign. 

The desirability of having the governor responsible for 
policies is obvious. In the first place, he alone is primarily 
responsible to the state as a whole rather than to a small 
district. In the second place, being intimately acquainted 
with the state through his position as chief executive, 


120 


Government of Oklahoma 


he should know its needs better than anyone else. In the 
third place he is in a position to acquire wider and more 
accurate information than can be obtained by members 
of the legislature. And finally, he has a longer time for 
working out the details of policy and the relationship of 
one law to another than have members of the legislature. 
The lack of responsibility for policy planning at present 
results in confusion, uncoordinated, politically and eco¬ 
nomically unsound legislation, which is continually being 
changed and tampered with. Granted, then, that the gov¬ 
ernor should be given such responsibility, how is it to be 
accomplished? 

Three main ways might be suggested. By constitutional 
provisions he might be continued as an officer elected 
by the people, but be given a seat on the floor of the 
legislature along with the other main executive officers 
with a right to be heard and to vote. He could also be 
given the power to initiate ordinary laws in the legisla¬ 
ture as well as to initiate appropriations under the bud¬ 
get law. In case of a fundamental disagreement between 
the governor and legislature, some method should be pro¬ 
vided by which a speedy resolving of such lack of har¬ 
mony could be accomplished. This could be done by permit¬ 
ting the governor to resign after calling an election for a 
new governor, or else to call an election for members of 
the legislature. In case members opposed to. his plans 
were re-elected, he would be forced to resign. If those 
in favor of his plans were elected, he could continue with 
his plans with a harmonious legislature back of him. 
Such a system would tend to make the governor really re¬ 
sponsible for the planning of law as well as financial 
planning. 

A second method which has been suggested is to have 


Chief Executive 


121 


the legislature appoint a manager, much as a city com¬ 
mission appoints such an officer. This manager would be 
responsible for both planning and carrying on adminis¬ 
tration under the control of the legislature. In such a 
system the executive is not a member of the legislature 
but only acts as its agent. He also is responsible not to 
the people but to the legislature alone. This plan is ad¬ 
mirable for a city or county where large questions of 
policy do not arise, but would not be so desirable in a 
state where often, perhaps, efficient administration should 
be subordinated to public policy. Furthermore, such a 
plan does not provide enough responsibility to the people 
on beihalf of the chief administrator. That is, no method is 
provided by which in case of an irreconcilable disagree¬ 
ment between the legislature and the executive, the will 
of the people may be ascertained. 

The third method of securing responsibility would be 
to have a nominal governor elected who would represent 
the state officially, but have him appoint k chief execu¬ 
tive officer from the legislature. This officer would be 
responsible for carrying out governmental administration 
and would in his turn appoint the heads of all the gov¬ 
ernmental departments from the membership of the legis¬ 
lature. He would initiate nearly all legislation, including 
the budget law, and would try to carry it through the 
legislature. In case of disagreement between the execu¬ 
tive and the legislature, the executive could either re¬ 
sign or call a new election. 

There are many advantages to such a plan. By having 
a nominal governor select a chief executive, many of the 
evils attendant upon the election of such an officer are 
done away with. The need of rewarding with administra¬ 
tive positions large numbers of politicians who helped in 
the campaign and the chance of electing a man to office 


122 


Government of Oklahoma 


who has had little governmental experience and who may 
not be able to work harmoniously with the legislature 
are some of the evils which would be avoided. The nom¬ 
inal governor would almost be bound to select a man of 
proved ability from the leading party in the legislature 
for the chief administrative officer, for otherwise he 
would neither be able to form a cabinet, nor to get the 
legislature to agree to his plans. In the second place, 
since the real executive and his heads of departments 
would be members of the legislature, the legislature 
would not be jealous of their power and so would look 
to them as the real planning body. In the third place, the 
legislature would be able to exercise a significant con¬ 
trol over them since it could ask questions, demand ex¬ 
planations regarding faulty administration and even by a 
vote remove them unless they could justify their actions 
before the people. Such an organization also obviates the 
objection to tjie manager plan for a state, since in case 
of final disagreement, the people themselves could deter¬ 
mine what policy they approved. This plan would also 
tend to place policies definitely before the people. Since 
the executive would advocate policies and his ability to 
remain as the executive would be dependent upon carrying 
them through the legislature, public attention would be 
focused upon him. By such a plan questions of public 
policy would be discussed, rather than, as at present, 
\ almost nothing but personalities. 

Either the first or the third of these methods should be 
adopted in order to secure the ablest and most responsible 
planning for legislation. 

THE GOVERNORS POWERS AS TO THE BUDGET. 

The governor is required by statute at the present time 
to prepare and present to the legislature ia complete 


Chief Executive 


123 


budget bill. This bill may, however, be completely changed 
in the legislature by the increase or decrease of items, 
and may even be voted down in its entirety and a new 
bill substituted. One of the chief powers of the governor, 
however, should be that of preparing the financial plan 
for the state. And when he has prepared such a plan the 
extent to which the legislature might alter it should be 
limited. If the governor is to be held responsible for finan¬ 
cial planning, increases and decreases should not be allow¬ 
ed, nor should new items be inserted, without the con¬ 
sent of the executive. In short, provision should be made 
so that the governor may be held absolutely responsible 
for the budget as passed or be forced to resign. A “show¬ 
down” should be provided for, by means of which the 
people could finally decide between the legislature’s plan 
and the executive’s plan in case the two could not 'agree. 
This could be made possible by either the first or the 
third scheme of organization suggested above. 

CONTROL OVER ADMINISTRATION. 

At the present time the governor is not an adminis¬ 
trative chief. The duties of administration are distributed 
among numerous elective officers and appointive officers, 
boards, and commissions. Over the former the governor 
has almost no control, and over the latter his control is 
limited in nearly every instance by legislative restriction. 
This makes for a decentralization which is expensive, in¬ 
efficient, and productive of discord. Duties are divided 
among these many officers with little respect to the rela¬ 
tion of one agency to the other, and the governor is power¬ 
less to demand constructive and harmonious work. Yet the 
people look to him, as supreme executive, for an efficient 
administration. If the electorate is to be justified in ex¬ 
pecting this of him, the power of appointing and remov- 


124 


Government of Oklahoma 


ing department heads should be rested in him, and all the 
administration of the state should be brought within his 
supervision. This may be accomplished by reorganizing 
the state administration so that all the functions carried 
on by the state government are placed under a small num¬ 
ber of departments. The heads of these departments 
should be appointed and removed by the governor. The 
duties of the numerous boards and commissions which 
now exist and perform their functions irrespective of the 
work >of other agencies performing similar functions 
should all be placed under these few departments. The 
governor would then be relieved from serving on varioius 
boards and commissions, and no work would be carried on 
by ex officio boards over which he had no control. At the 
same time he would be responsible for all the adminis¬ 
trative work because he had appointed and directed the 
department heads. As new functions developed they 
would be placed with one of the existing departments, 
rather than with a new administrative agency outside 
the control of the governor. Only in this way can admin¬ 
istrative unity be secured. 

The governor should be provided with an expert staff 
to assist him in checking up on administration and in 
making administrative plans. 

The constitutional provisions in regard to administra¬ 
tion should be very brief, only the fundamental plan of 
organization being prescribed. Opportunity would be left 
then, for the legislature to change and improve upon 
details. The chief executive should have considerable free¬ 
dom of organization within the departments and should 
be allowed to exercise his own judgment in distributing 
administrative duties. These matters should be regulated 
only by administrative ordinances. 


Chief Executive 


125 


The administrative system, then, should be centralized, 
the governor should be given the power of appointing 
and removing department heads who would direct the per¬ 
formance of all administrative duties, an expert staff 
should aid the governor, and the details of organization 
within the administrative departments should be left to the 
executive. By means of these changes the governor would 
be given authority sufficient to make him the real execu¬ 
tive of the state. 

SPECIAL POWERS AND DUTIES. 

The duties devolving upon the governor as pardon and 
parole officer should be given to some other agency. A 
pardon and parole board the sole duty of which was to 
investigate land act upon applications for pardons, could 
no doubt exercise this function in a much fairer manner 
than could the chief executive with his great task of 
directing administration. The placing of the pardoning 
power in the hands of other officers would also remove 
the governor from political influences brought to bear by 
persons seeking clemency. 

The duty of appointing notaries public should also be 
placed elsewhere than with the governor. These places 
might well be filled by a civil service commission. 

The several powers, such as those of acting as com¬ 
mander-in-chief of the militia, conducting interstate busi¬ 
ness, and filling vacancies in certain offices, which are 
now rested with the governor as supreme executive, 
should remain in his hands. Most of these are employed 
very infrequently and would not, therefore, interfere to 
any great extent with the governor’s time; yet because 
they involve the exercise of discretion in important mat¬ 
ters they should be prerogatives of the chief executive. 


CHAPTER IV. 


STATE ADMINISTRATION. 

The executive and administrative functions of the state 
of Oklahoma are performed by thirteen elected 
officers for whom provision is made in the constitution, 
and by about sixty-five other officers, boards, commis¬ 
sions, or departments. The constitutional executive offi¬ 
cers are the governor, the lieutenant governor, the secre¬ 
tary of state, the state auditor, the attorney general, the 
state treasurer, the state superintendent of public instruc¬ 
tion, the state examiner and inspector, the chief mine in¬ 
spector, the commissioner of labor, the commissioner of 
charities and corrections, the commissioner of insurance, 
and “other officers provided by law and this Constitu¬ 
tion.” 1 The president of the state board of agricul¬ 
ture is generally considered a constitutional officer, though 
the amendment passed by the legislature in 1913 and ap¬ 
proved by the people in 1914 creates a board of agricul¬ 
ture of eleven members, 2 without specifying that one 
of these members shall be the president of the board. 
However, since the commissioners of the land office, 
who are named in the following clause of the constitution, 
include the president of the board of agriculture, it is 
commonly held that he is the thirteenth member of the 
group of constitutional officers. 

The constitution and the laws lay down certain qualifi¬ 
cations in regard to these officers. With the exception of 
the commissioner of charities and corrections, all must be 
of the male sex. A requirement of citizenship in the Unit- 

x Art. VI, Sec. 1 Const, of Okla, 

2 Art. VI, Sec. 31 Const, of Okla. 


(120) 



State Administration 


127 


ed States is specified for all except the chief mine in¬ 
spector, the commissioner of labor, the commissioner of 
charities and corrections, the commissioner of insurance, 
and the president of the state board of agriculture. In 
the majority of instances it is required by the constitu¬ 
tion that these officers shall have been citizens of the 
state for a period of three years next preceding their 
election. An age qualification of twenty-five years is im¬ 
posed upon the insurance commissioner and the commis¬ 
sioner of charities and corrections. No age is specified for 
the chief mine inspector, the commissioner of labor, and 
the president of the board of agriculture; though in the 
case of the last mentioned officer the requirement of the 
law that all members of this board shall have been en¬ 
gaged in practical farming for at least five years after 
reaching the age of twenty-one serves to establish an age 
qualification of twenty-six years. The other constitutional 
executive officers must have reached the age of thirty 
years in order to be eligible. Certain special qualifica¬ 
tions for various offices will be mentioned when these 
offices are discussed. 

All the above named officers are chosen at alternate 
general elections, for terms of four years synchronous 
with the term of the governor. The governor, the secretary 
of state, the state auditor and the state treasurer are not 
permitted to hold office for two consecutive terms. 

We shall survey rapidly the most important duties of 
the executive officers whose functions are not considered 
elsewhere in this book. (See Index.) As the duties and 
powers of the governor and the lieutenant governor have 
been discussed in considerable detail in the preceding 
chapter, our survey will begin with the work of the sec¬ 
retary of state. 


128 


Government of Oklahoma 


THE SECRETARY OF STATE. 

The duties of the secretary of state are laid down both 
by the constitution and by statutes. The constitution 
provides that he shall keep a register of all the official 
acts of the governor, shall attest them, when necessary, 
and shall lay copies of them and of all papers relative 
thereto, before either house of the legislature when re¬ 
quired to do so. He also preserves the constitution of 
the state. 3 He is the custodian of the seal of the 
state and authenticates therewith all official acts of the 
governor except his approval of laws. 4 He likewise 
attests all commissions signed by the governor, and files 
a list of all appointments made by the governor. 5 
The secretary of state also has important duties in con¬ 
nection with the state-wide initiative and referendum 
and with proposed amendments to the constitution. Pe¬ 
titions and orders for the initiative and referendum are 
filed with him. 6 He refers constitutional amendments to 
the people. 7 

The oaths of office of various state officers are re¬ 
quired to be filed with the secretary of state; such as 
the oath of each member of the corporation commission 
that he is not interested in any corporation over which 
the commission has jurisdiction, and that he will per¬ 
form his duties as laid down by law. 8 A special form 
of oath is given in the constitution, to which senators, 
representatives, and all judicial, state, and county officers 
are required to subscribe. This oath, when taken by state 

3 Const. Schedule, Sec. 43; Const. Art. VI, Sec. 17. 

4 Ibid, Sec. 18. ' 

3 R. L. 1910, Sec. 4280: Const. Art. VI, Sec. 13. 

6 Const. Art. V, Sec. 3. 

7 Art. XXIV, Sec. 1. 

'Const. Art. IX, Sec. 17. 



State Administration 


129 


officers and judges of the supreme court, is filed in the 
office of the secretary of state. 9 

Copies of city charters which have been certified, au¬ 
thenticated and approved by the governor, 10 and 
copies of amendments to such charters, must also be filed 
in this office. 11 

In connection with business and corporations the secre¬ 
tary of state acts in several capacities. Articles of incor¬ 
poration are filed with him and he records these and issues 
a certificate “that the articles containing the required 
statement of facts have been filed in his office.” 12 
Foreign corporations must file their articles of incorpora¬ 
tion with him, 13 and agents of foreign corporations 
must file authenticated copies of their appointments and 
commissions. 14 In case a foreign corporation does 
not have an agent in the state upon whom process may be 
served, such process is served on the secretary of state. 15 

Numerous other duties in connection with the recording 
of documents, the certifying of documents, the filing of 
bonds, and so forth, are laid upon the secretary of state 
by law. 

THE AUDITOR. 

The audior is the chief accounting officer of the state. 
All accounts or claims against the state must be presented 
to the auditor. He examines and adjusts these claims, 
and if they are found to be due from the state, he issues 
warrants upon the treasurer for payment. Before issuing 

9 Const. Art. XV, Sec. 2. 

10 Const, Art. XVIII, Sec. 3a. 

“Ibid, Sec. 4e. 

12 R. L. 1910, Secs. 1227, 1228. 

“Ibid. 1335. 

“Ibid, Sec. 1337. 

15 Ibid, Sec. 1339. 



130 


Government of Oklahoma 


any warrant the auditor may require additional informa¬ 
tion, and for this purpose he may call before him and 
swear and examine claimants and other witnesses in ref¬ 
erence to any claim or account presented to him. 
The auditor must report semi-annually to the governor, 
and is also required to submit a biennial report preceding 
each regular session of the legislature. 1 ' The law lays 
down in detail the contents of this report. Examination 
shows that the information required is not particularly 
useful. Of what possible value to the legislature is a 
“statement of date, number and amount of each warrant, 
the person in whose favor, and on what appropriation or 
fund each warrant is drawn”? The legislature needs com¬ 
prehensive and significant financial statements and sum¬ 
maries, rather than such meaningless details. 

The statements required of the auditor in respect to the 
budget are much more worth while, since the law provides 
that he shall furnish certain information wlhich might 
be of value in determining future public policy. 18 By 
the budget law the auditor is required to present to the 
governor an itemized list of the needs of the legislature 
and of the judiciary for each of the ensuing fiscal years, 
to accompany such estimates with full and detailed expla¬ 
nation of all increases and decreases, and to supply other 
information designed to give the governor a basis for the 
preparation of the budget. 19 

Many of the usual functions given a state auditor are 
[ taken away from the Oklahoma auditor and are lodged in 
the state examiner and inspector. The auditor does not 
have the power to prescribe a uniform system of book- 

16 R. L. Okla. 1910, Sec. 8000. 

17 R. L. 1910. Sec. 8072. 

18 S. L. 1919, Ch. 142. 



State Administration 131 

keeping for the use of all treasurers, since that is done by 
the examiner and inspector. 20 The examination of 
the finances of public institutions is likewise in the hands 
of the examiner and inspector. 21 The accounting 
procedure in respect to the budget is taken away from the 
auditor and lodged in the governor. 22 The (auditor of 
Oklahoma, then, instead of exercising the usual large cen¬ 
tralized controlling functions, is little more than a check¬ 
ing officer to see that no money is paid out of the treas¬ 
ury except according to law. 

Such a division of financial control leads to confusion 
and irresponsibility. Undoubtedly all such powers should 
be lodged in one officer.. 

While many of the usual functions belonging to an aud¬ 
itor are taken away from the auditor of this stare, certain 
unusual functions are given to him by law. As a member 
of the state board of equalization, he helps to assess 
all public utilities operating within the state. 23 He 
also collects several important taxes, including the gross 
production tax,” the graduated income tax,*' the 
graduated inheritance tax, 26 and the tax on transpor¬ 
tation and transmission companies. 27 The vesting 
of such functions with the state auditor is highly illogical; 
since all special taxes should be collected by some one cen¬ 
tral department. 

While the auditor does not have control over establish¬ 
ing accounts for the various public treasurers in the state 

*K. L. 1910, Sec. 8121. 

21 Ibid, Sec. 8120. 

a S. L. 1919, Ch. 142. 

’“Const. Art. X. Sec. 21; R. L. 1910, Sec. 7373. 

24 S. L. 1916, Ch. 39. 

W S. L. 3915, Ch. 164. 

“S. L. 1919, Ch. 296. 

^Bunn, Sec. 7549, W to Z 1. 



132 


Government op Oklahoma 


he prepares such forms and instructions, in conformity 
with existing state laws, as are necessary to secure uni¬ 
formity in “assessing, charging and collecting and account¬ 
ing for the public revenue * * *” The assessors and 

treasurers must observe such forms and instructions. 38 

% 

This gives rise to the absurd situation that the ex¬ 
aminer and inspector determines, the accounting pro¬ 
cedure of public treasurers, and yet the auditor prescribes 
forms in respect to all revenue. 

The auditor has no general power to examine state in¬ 
stitutions in order to determine whether or not they are 
conducted efficiently, or whether their appropriations 
from the state are being expended properly. His exami¬ 
nation of their expenditures as shown by their warrants 
is merely a legal affair. However, in passing upon the 
question whether an expenditure is justified by the na¬ 
ture of the appropriation, he exercises a large degree of 
discretion. Thus, the auditor has held in certain instances 
that certain contingent accounts of the governor or other 
officers could not be used for the payment of traveling 
expenses outside of the state. The courts have laid stress 
upon the auditor’s powers of discretion. “The state looks 
to the auditor, and not to any other officer, to determine 
whether a warrant has been issued in comformity with the 
law, and the state holds him responsible for the allowance 
of an illegal claim and the issuance of an invalid warrant. 
Hence to divest him of discretion in the allowance of claims 
and the issuance of warrants would prohibit him from per¬ 
forming the plain duties imposed upon him by law.” 
(Clark v. Carter, XVIII Okla. App. Rep. 458.) Often the 
exercise of such a power, particularly if it is in an arbitrary 
way, causes much friction between the auditor and the va- 


*R. L. 1910, Sec. 8075. 



State Administration 


133 


rious departments and institutions. The claim is often 
made that this power of discretion has been employed at 
times for political or personal ends. The only way in which 
such an abuse of discretionary power may be checked, is to 
make the appropriation definite enough to cover most of the 
questions which are likely to arise, or else to outline in 
some detail the restrictions placed upon the expending of¬ 
ficer; thus limiting the auditor’s power to that of decid¬ 
ing whether the proper procedure has been followed, 
whether there is money in the appropriation to meet the 
claim, and whether the claim is legal. 

THE ATTORNEY-GENERAL. 

The attorney general is tlhe principal legal authority of 
the state. He appears for the state and prosecutes and de¬ 
fends all actions and proceedings in the state supreme 
court and criminal court of appeals in which the state 
is an interested party. When requested to do so by the 
governor or by either branch of the legislature, he must 
appear for the state and defend its interests or prosecute 
its suits in any other court or before any officer. He at¬ 
tends to all civil cases remanded by the supreme court to 
any district court, in which the state is a party or is in¬ 
terested. 29 It is the duty of the attorney general at 
the request of the governor, auditor or treasurer, to pro¬ 
secute any official bond or contract in which the state 
is interested, upon a breach thereof, and to prosecute or 
defend for the state all actions, civil or criminal, relating 
in any way to either of their departments. 30 He 
must give his opinion in writing upon all questions of 
law submitted to him by the legislature, or either branch 
thereof, or by any state official, commission, or depart¬ 
ment. He must consult with and advise the county attorn- 


“R. L. 1910, Sec. 8057. 
ao Ibid, Sec. 8058. 



134 


Government of Oklahoma 


eys, upon their request, in regard to all matters per¬ 
taining to the duties of their office, when they furnish 
a brief of their opinion upon any matter submitted. 31 
Under this power he has quite a large field of action in 
helping to enforce the state laws within the counties. In 
certain important cases the work of prosecution is left 
almost entirely to him. The law' 2 expressly provides 
that he shall not furnish opinions to others than those 
enumerated in the law. Whenever requested by any state 
officer, he prepares proper drafts of “contracts, forms 
and other writings which may be wanted for the use of 
the state.” 33 

The attorney general acts as state bond commissioner. 
He prepares forms and prescribes a method of procedure 
for the issuance of public securities and bonds, in any 
county, township, municipality or other political subdi¬ 
vision of the state. He also passes upon all such securi¬ 
ties as to legality and procedure. When securities receive 
the certificate of the bond commissioner, they become in¬ 
contestable in any court in the state, unless suit shall be 
brought upon them in a court of competent jurisdiction 
within thirty days from their approval by the attorney 
general. 34 No bonds* issued by any political or mu¬ 
nicipal subdivision of the state are valid without such 
approval. 35 The attorney general, however, does not 
pass upon the expediency of bond issues, or upon the con¬ 
struction of engineering features of the projects for 
which they are to pay. In fact, there is no department 
in the state to pass upon these important matters. 

S1 lbid, sec. 8059, as amended by S. L. 1919, Ch. 215, Sec. 5. 

32 Ibid. 

33 Ibid, Sec. 8060. 

34 R. L. Okla. 1910, Secs. 376 and 377. 

S5 Ibid, Sec. 378. 



State Administration 


135 


Under the so-called attorney general’s law, 36 the attor¬ 
ney general, upon his own motion, or upon request of the 
governor, takes action for the removal or suspension of 
certain state, coiunty and municipal officers wlho are ap¬ 
parently failing to perform their duties. The duties of the 
attorney general under this law are fully discussed in 
chapter XXII, Administrative Control over Oklahoma 
Cities. 

Several minor duties are laid upon the attorney general 
by law. He is provided with a staff of assistant at¬ 
torneys general, who are assigned to particular depart¬ 
ments of the state government or who are given special 
duties to perform under him. These assistants are ap¬ 
pointed by the attorney general with the approval and 
consent of the governor. 37 

THE STATE TREASURER. 

The state treasurer has charge of all public moneys 
which come into the state treasury, and pays them out 
upon the presentation to him of warrants issued by the 
auditor. 38 Warrants redeemed by him are depos¬ 
ited with the auditor. 39 He is required to keep an 
accurate account of all receipts and disbursements of the 
treasury. 40 He must keep state tax records for each 
of the counties of the state, in which he charges the 
county with the amount of the tax levied, according to the 
statements of assessments and levy transmitted to him 
by the state auditor, and credits it with the amounts re¬ 
ceived from the county treasurer. 41 He submits a 

a6 S. L. Okla. 1917, Ch. 205. 

37 S. L. 1916, Ch. 34. 

•^R. L. 1910, Sec. S136 and S. L. 1915, Ch. 4. 

39 Ibid, Sec. 8141. 

"Ibid, Sec. 8137. 

"Ibid. Sec. 8138. 



136 


Government of Oklahoma 


report to the governor semi-annually. Biennially, preced¬ 
ing each regular session of the legislature, he hands to 
the governor a report containing “a full and true exhibit 
of the state of public accounts and funds, the amount by 
him received, the amount paid out during the preceding 
fiscal term and the balance remaining in the treasury, 
together with an exhibit of the accounts of the several 
organized counties, which biennial report shall by the 
governor be transmitted to the legislature.” 42 It 
is noticeable that neither the reports which the auditor 
makes to the legislature, nor those of the treasurer, show 
the accounts of the state upon an accrual basis. This 
means that the legislature is not able to get an accurate 
picture of the financial condition of the state. The near¬ 
est approach to adequate financial statistics which the 
governor and the legislature receive consists of the re¬ 
port made by the state examiner and inspector. 

The state treasurer has charge of the deposit of “all 
moneys, funds, rentals, penalties, costs, proceeds of ,sale 
of property, fees, fines, forfeitures, and public charges 
of every kind that may foe received by any state officer, 
state board, state commission, or by any employee of 
either of such officers, boards or commissions by virtue 
or under color of office.” 43 These moneys when 
so received by the state treasurer are deposited by him 
daily in banks designated and qualified as depositories. 
The governor, the attorney general and the state treas¬ 
urer are authorized to select the banks acting as depos¬ 
itories. 44 The treasurer must give bond to the extent of 
$50,000 45 and is also liable for loss caused by negligence. 4 ® 

42 R. L. 1910, Sec. 8142. 

43 S. L. 1915, Ch. 238. 

44 Ibid. 

45 R. L. Okla. 1910, Sec. 8135. 

“Ibid. Sec. 8145. 



State Administration 


137 


the state examiner and inspector. 

The state examiner and inspector must have had at 
least three years’ experience as an expert accountant, in 
addition to the usual qualifications required of state ex¬ 
ecutive officers/ 7 Part of his duties are laid down 
by the constitution. These include the duty of examining 
at least twice in each year, without previous notice, the 
books, the accounts, and the cash on hand or in bank, 
in Charge of the state treasurer and each county treas¬ 
urer. In order to make this examination thoroughly, he 
has the right to take complete possession of any treasur¬ 
er’s office for the time being. A report as to every such 
treasurer must be published by the examiner and inspec¬ 
tor at least once each year. He also prescribes a uniform 
system of bookkeeping for the use of all treasurers. 48 

Statutes supplement the constitution in respect to the 
duties of the examiner and inspector. These statutes 
largely repeat the constitutional provisions and then add 
certain specific duties. He must examine the books and 
accounts of all state officers whose duty it is to collect, 
disburse or manage funds of the state, at least once each 
year; and whenever called upon by the governor, he must 
examine the books and accounts of any officer of the state 
or any of his predecessors. 40 

He must examine and report upon the books and fi¬ 
nancial accounts of the several public, educational, chari¬ 
table, penal and reformatory institutions belonging to the 
state, enforce correct methods of keeping financial ac¬ 
counts of state institutions, instruct the proper officers 
thereof in the performance of their duties, and examine 


"Const. Art. VI, Sec. 19. 
"Const. Art. VI, Sec. 19. 

49 R. L. Okla. 1910, Sec. 8119. 



138 ' Government of Oklahoma 

the books and accounts of all public institutions under the 
control of the state at least once each year. Officers of 
such institutions who refuse or wilfully neglect to comply 
with his directions as to the keeping of accounts within 
such reasonable time as he prescribes are deemed guilty 
of a misdemeanor 50 . 

The law repeats the constitutional provision which 
gives to the state examiner and inspector the power of 
prescribing a uniform system of bookkeeping, for all 
treasurers. Full authority is given him also to prescribe 
a system of bookkeeping for all county officers, “and ex¬ 
pose false and erroneous systems of accounting, and, 
when necessary, instruct or cause to be instructed the .state 
and county officers in the proper mode of keeping the 
accounts.” He is required to make a thorough examination 
of the books, accounts and vouchers of such officers, and 
to report to the governor the refusal or neglect of any 
state or county officer to obey his instructions. The gov¬ 
ernor may cause the result of such examination to be 
published 51 . Officers are required to afford facilities 
for such investigations, and hindering the examination or 
refusal to search for information required by the examiner 
and inspector is a misdemeanor, punishable by a fine of 
one thousand dollars or a year’s imprisonment in the 
county jail. The law makes it the duty of the examiner 
and inspector, upon the request of the county commission¬ 
ers of any county, or upon request to the governor, signed 
by five per cent of the legal voters of any county, and by or¬ 
der of the governor, to examine or cause to be examined by 
duly appointed deputy or deputies, the books and ac¬ 
counts of all or any officers or custodians of the various 
funds of the county. Payment for such examination is 


“Ibid, Sec. 8120. 
5t Ibid. Sec. 8121. 



State Administration 


139 


made out of the contingent fund of the county so exam¬ 
ined. While this provision may help to straighten out 
the confusion of county accounts in some instances, and 
may also serve as a check upon wrong usages, it does not 
appear to go far enough. Conditions have to be in ex¬ 
tremely bad shape before five per cent of the voters of a 
county petition the governor to have the county affairs 
examined. It is much like locking the door after the 
horse is stolen. Again, county financial affairs may get 
into a tangle because of ignorance on the part of the elect¬ 
ed county officials. What is needed is a continuous con¬ 
trol over all county officials, by a responsible state officer. 
Possible methods of exercising this control will be de¬ 
scribed later. 

It is made the duty of the examiner and inspector to 
examine all levies to raise public revenue, in order to 
determine whether they are made according to law and 
constitutional provisions. He has the power to order all 
excessive or erroneous levies to be corrected by the pro¬ 
per officers, and is required to report any irregularities 
to the governor. 

The difficulties which arise from having the examiner 
and inspector prescribe the accounting system for all 
treasurers of public institutions in the state, while the 
auditor prescribes forms and procedure for the collection 
of revenues, and the governor prescribes the classifica¬ 
tion of accounts for the budget, should be obviated by 
giving all such functions to one official. Probably the ex¬ 
aminer and inspector should not only possess these func¬ 
tions, but should be an officer of the legislature (perhaps 
under the title of comptroller general) to check up on the 
work and the accounts of all the different departments of 
the state. As such, his reports to the legislature would 
be reports of administrative needs, administrative short- 


140 


Government of Oklahoma 


comings, and methods of bettering conditions. He should 
have sufficient auditing control over all the various de¬ 
partments and institutions to see that the will of the legis¬ 
lature was being carried out in their use of their approp¬ 
riations. Handling the details of passing upon claims 
issued, and of issuing warrants for the payment of these 
claims, would seem to be the proper function of the aud¬ 
itor, who should be an officer of the executive branch of 
the government. Whether by these means or by others, 
the whole accounting system of the state should be in¬ 
tegrated, in respect to the accounting for revenue, in re¬ 
spect to the accounting methods of all the various insti¬ 
tutions and departments, and in respect to the budget. 

OTHER ADMINISTRATIVE OFFICERS. 

The following officials are connected with the state 
administration, but are not constitutional executive of¬ 
ficers : 

The state bank commissioner, the state fire marshal, 
the state health commissioner, the state game warden, 
the pardon and parole attorney, the state highway com¬ 
missioner, the adjutant general, the state librarian, the 
warden of the .state penitentiary, the warden of the state 
reformatory, the director of the state geological survey, 
and tlhe commissioner of pensions. 

Other chapters in this book cover the work of all of the 
foregoing 52 whose duties need to be described, except 
the state fire marshal. 

52 State Bank Commissioner, Ch. XIII; State Health Commissioner, 
Oh. XIV; State Game Warden, Ch. XV; Pardon and Parole Attorney, 
Ch. Ill; Adjutant General, Ch. Ill; State Highway Commissioner, 
Ch. XVI; State Librarian, Ch. XVII; Warden of State Penitentiary, 
Ch. XVIII Warden of State Reformatory. 



State Administration 


141 


THE STATE FIRE MARSHALL. 

The state fire marshal is appointed by the governor^ 
with the advice and consent of the senate 53 . He ap¬ 
points a chief assistant who is removable by him, and! 
who assists him and acts in his place when he is not 
able to perform his duties 51 . Together with the chief 
of the fire department of every city or village in which 
a fire department is established, the mayor of every in¬ 
corporated town or village in which no fire department 
exists, and the sheriff of the county, the state fire marshal 
investigates the “cause, origin and circumstances” of 
every fire. It is his duty to make special investigation to 
see whether or not a fire was the result of carelessness or 
design. The state fire marshal keeps in his office all 
records in respect to fires and from them compiles statistics. 
In carrying out his duties he may take testimony, adminis¬ 
ter oaths, and cause any person whom the evidence in¬ 
dicates to be guilty of arson or other criminal conduct in 
respect to fires to be arrested and charged with, such of¬ 
fense 55 . The salary of the state fire marshal and the ex¬ 
penses incurred by him in performing his duties are de¬ 
frayed by the fire insurance companies doing business in 
the state by a one-fourth of one per cent tax upon the 
gross premium receipts. 56 

ADMINISTRATIVE BOARDS. 

The various boards, commissions, and bodies of like 
nature which perform special administrative duties may 
be classified in a rough way according to the nature of 

53 S. L. 1911, Ch. 46. 

“Ibid. 

55 Ibid. 

“Ibid. 



142 


Government of Oklahoma 


their functions. The following classification seems a con¬ 
venient one 57 : 

1. Management of State Business. 

Board of Affairs, State Election Board, Commissioners 
of Land Office, State Board of Equalization, Assistant 
Attorneys General. 

2. Education, Reform, Charity, etc. 

State Board of Education, Board of Commissioners for 
Adult Blind, Board of Managers of Eleemosynary Institu¬ 
tions, Childrens’ Code (Commission, State Historical 
Society, Library Commission, State Geological Survey, 
State Board of Vocational Education, Soldiers’ Relief 
Commission, Text Book (Commission, Board of Regents of 
University of Oklahoma, Board of Regents of Oklahoma 
Military Academy, Board of Regents of Oklahoma College 
for Women, Board of Regents of Oklahoma State Busi¬ 
ness Academy, Board of Regents of School of Mines and 
Metallurgy, Board of Regents of Miami School of Mines, 
Board of Regents of Colored Agricultural and Normal 
University, Educational Survey Commission. 

3. Regulation of Business and Industry. 

Corporation Commission, Industrial Commission, Board 

of Agriculture, State Banking Board, State Insurance 
Board, Assistant Mine Inspectors, State Board of Arbitra¬ 
tion and Conciliation, Fraternal Insurance Board, State 
Issues Commission, State Mining Board, State Market 
Commission, State Warehouse Commission. 

4 Examining Boards. 

Board of Medical Examiners, Examining Board for 
Nurse*, State Board of Veterinary Examiners, State 

“"This list includes all the hoards mentioned in the State Direc¬ 
tory embodied in the 1921 S. L. of Oklahoma, and some others. 



State Administration 


143 


Board of Embalmers, State Board of Pharmacy, State 
Board of Accountancy, State Board of Dental Examiners, 
State Bar Commission, State Board of Optometry, State 
Board of Chiropractic Examiners, State Board of Osteo¬ 
pathic Examiners. 

5. Miscellaneous. 

Trustees of Confederate Soldiers’ Home, Trustees of 
Union Soldiers’ Home, Soldiers’ Memorial Commission, 
State Cemetery Board, State Fish and Game Commission, 
Uniform Laws Commission. 

The duties of certain of these bodies, in particular the 
examining boards, are evident from their names. Vari¬ 
ous other boards and commissions have been discussed 
elsewhere in this book. (See index.) The present chap¬ 
ter, then, will consider in detail only the boards with im¬ 
portant special functions, which have not been treated in 
other connections. 

THE STATE BOARD OF AFFAIRS. 

Because of the extent of its powers and the nature of 
its duties, the board of affairs is one of the most im¬ 
portant boards in the state government. This board 
consists of three members, not more than two of whom 
shall be members of the same political party, and each of 
whom shall be experienced in public affairs and shall be a 
qualified elector of the state. They are appointed by the 
governor, by and with the advice and consent of the 
senate, for a term coterminous with that of the governor 
making the appointment. The governor may remove any 
member of such board from office whenever in his opinion 
the public interest requires it 58 . The board of affairs 
has charge of the “construction, repair, maintenance, in- 


M R. L. 1910, Sec. 8079. 



144 


Government of Oklahoma 


surance and operation of all buildings, used or occupied 
by or on behalf of the State; it shall have authority to 
purchase all material and perform all other duties neces¬ 
sary in the construction, repair and maintenance of all 
such buildings; it shall make all necessary contracts by 
or on behalf of the State for any buildings or rooms 
rented for the use of the State or any of the officers there¬ 
of.--It shall have the custody and control of all 

state property, and all other property managed or used 
by the State, except military stores and such as come 
under the control of the state banking department; it 
shall procure all necessary insurance thereon against loss” 
.. 59 . This board furthermore contracts for, pur¬ 
chases and acquires all furnishings, furniture and sup¬ 
plies of “every kind or description for the use of the 
State or its officers, or the support of the several state in¬ 
stitutions, including printing, stationery, fuel, tools, imple¬ 
ments, furniture, books, food, clothing and medical sup¬ 
plies, where the law requires the State to furnish the 
same".” It will thus be seen that this board acts as a 
large central purchasing agent in securing state supplies 
of every description. 

What restrictions are put upon this sweeping grant of 
authority? In the fir^t place, the members of the board 
of affairs are prohibited from engaging in any other 
business while they are in the service of the board 61 . 
In the second place, they must make at .the end of each 
quarter full and complete reports of their transactions, 
and must “specifically set out all purchases made and 
financial transactions had during that quarter”. 62 The 

W R. L. 1910, Sec. 8082. 

*°Ibid, Sec. 8083. . 

•Ubid, Sec. 8085. 

* 2 Ibid, Sec. 8088. 





State Administration 


145 


taking of rebates or a “percentage of contract, money 
or any other thing of value from any person, firm, or 
corporation offering, bidding for, or in the open market 
and seeking to make sales to said board, shall be deemed 
a felony,” punishable by a fine not to exceed five thousand 
dollars and imprisonment in the penitentiary not less 
than five nor more than ten years 63 . 

Beside acting as a purchasing agent, the board of af¬ 
fairs acts as the controlling board for the two state in¬ 
sane hospitals, the institution for the feebleminded 64 , 
the state penitentiary and the reformatory 65 . In re¬ 
spect to fiscal matters this board controls the State 
Training School for White Boys, the State Industrial 
School for White Girls, the East Oklahoma State Home 
for White Children, The West Oklahoma State Home for 
White Children, the State Training School for Colored 
Boys, the State Training School for Colored Girls, and 
the Deaf, Blind, and Orphans’ Home for Colored Child¬ 
ren 66 . The state tubercular hospital is also under the con¬ 
trol of the state board of affairs 67 . If this board is to i 
act as a proper purchasing agent its control over certain 
penal and eleemosynary institutions should be taken away 
from it and lodged with the commissioner of charities and 
corrections where it properly belongs. 

The board is required to furnish information concerning 
the location, grade, quality and cost of different kinds of 
building material in the state used in public buildings 68 . 

63 Ibid, Sec. 8090. 

M S. L. 1917, Ch. 174. 

65 R. L. 1910, Secs. 7117; 7126; S. L. 1915, Ch. 57, S. L. 1917, 
Ch. 211. 

69 S. L. 1916, Ch. 188. 

"S. L. 1917, Ch. 171. 

68 S. L. 1911, Ch. 76. 



146 


Government of Oklahoma 


It must make and keep an inventory of all state proper¬ 
ty", and it has authority to sell and exchange state prop¬ 
erty and to transfer personalty from one department to 
another 70 . Several minor functions are also given to this 
board. 

COMMISSIONERS OF THE LAND OFFICE. 

The governor, the secretary of state, the state auditor, 
the superintendent of public instruction, and the presi¬ 
dent of the board of agriculture, constitute the commis¬ 
sioners of the land office, popularly called the school land 
commission. They have charge of the sale, rental, dis¬ 
posal and managing of the school lands and the ether 
public lands of the state, and of the funds and proceeds 
derived from these lands, under rules and regulations pre¬ 
scribed by the legislature 71 . These lands, and funds are 
described in chapter X. 

SOLDIERS MEMORIAL COMMISSION. 

This commission consists of five members. The gov¬ 
ernor is ex officio chairman, and the other members are 
appointed by him. One member of this commission, how¬ 
ever, must be a woman, and one a soldier who saw active 
service in the world war. All members serve without 
pay save actual and necessary traveling expenses. It is 
the duty of this commission “to secure plans, designs and 
estimates” for a memorial “to those who gave their lives 
for their country in the World War,” the cost of which 
shall not exceed $500,000. This memorial is to be erected 
on a site to be selected by the commission, convenient to 
the capitol and upon land owned by the state of Okla- 

69 S. L. 1913, Oh. 197. 

70 Ibid. 

n Const. Art. VI, Sec. 32. 



State Administration 


147 


homa‘ 2 . Since the 1921 legislature made no appropria¬ 
tion for carrying out this law, it is questionable whether 
this commission is still functioning. 

STATE GEOLOGICAL COMMISSION AND SURVEY 

The state geological commission is composed of the 
governor, the president of the state university, and the 
state superintendent of public instruction 13 . The mem¬ 
bers serve without pay except that they are reimbursed for 
actual and necessary expenses incurred in the performance 
of their duties. They have general supervision over the 
state geological survey, the director of which is appointed 
by them. This director must be a geologist of established 
reputation. With the approval of the commission he 
chooses his own assistants and employees. 

The state geological survey, which is located at the 
state university, has the following objects: 

“First. A study of the geological formations of the 
State with special reference to its mineral deposits, in¬ 
cluding coal, oil, gas, asphalt, gypsum, salt, cement, 
stone, clay, lead, zinc, iron, sand, road building material, 
water resources and all other mineral resources. 

“Second. The preparation and publication of bulletins and 
reports, accompanied with necessary illustrations and 
maps, including both general and detailed descriptions 
of the geological structure and mineral resources of the 
State. 

“Third. The consideration of such other scientific and 
economic questions as, in the judgment of the commis¬ 
sion, shall be deemed of value to the people 74 .” 


✓ 


72 S. L. Okla. 1919, Ch. 4. 
73 R. L. 1910, Sec. 8125. 
74 Ibirl, Sec. 8126 and 8127. 



148 


Government of Oklahoma 


The director presents to the governor a biennial report 
concerning the work of the survey 75 . 

STATE CEMETERY BOARD 

The state cemetery board, which was established by 
the 1919 legislature, consists of three members appointed 
by the governor. The board is directed to procure by 
purchase, condemnation or donation a tract of land Of 
not more than three hundred and twenty acres to be 
known as the Oklahoma State Cemetery. United States 
.soldiers and marines, army nurses, the wives or husbands 
of the foregoing, any former state or territorial elective of- 
cials or members of Congress, members of the state militia, 
and any person to whom the legislature shall “by resolu¬ 
tion, extend this privilege,” may be buried in this ceme¬ 
tery. It is to be located with the advice and consent of 
the governor. The board makes such rules and regula¬ 
tions as may be necessary for the care of the cemetery 79 . 

CRITICISMS AND RECOMMENDATIONS. 

From our examination of state administration in this 
chapter, and from the more detailed descriptions of certain 
boards and officials found in chapters dealing with special 
functions, it is evident that the present administrative 
system of Oklahoma is irresponsible, inharmonious, illogi¬ 
cal, cumbersome, and expensive. 

Responsibility in government depends upon definite ac¬ 
countability to a superior authority; and this is entirely 
lacking in our system of administration. Theoretically 
the elected administrative officers are accountable to 
the people; but this theory is without foundation in fact. 
The people have no method for determining a candidate’s 


x 


7S Ibid, Sec. 8128. 

76 R. L. 1919, Ch. 153. 



State Administration 


149 


fitness for an administrative position, or for judging how 
well or how poorly he does his work, nor can detailed 
administrative problems be presented as campaign issues; 
so that there is absolutely no way of holding an admin¬ 
istrative officer responsible to the people for the quality 
of his work. This means that political astuteness rather 
than merit will often be the winning force in a campaign; 
and the result of such a situation is to disgust really 
qualified men and deter them from seeking office; and 
to encourage the type of man who dreads’ responsibility 
but thrives upon political “pork”, to apply for positions 
properly demanding expert ability. 

Though responsibility to the people does not exist, no 
provision is made for holding the state administrative of¬ 
ficers responsible to the governor, who should be logically 
the head of the administrative system. The elected of¬ 
ficials are not answerable to him in any way; while his 
power over the appointed officers and boards, though 
considerable, is yet limited by many legislative provi¬ 
sions 77 . Consequently there is nowhere in the state 
government a definite, centralized responsibility for ef- 
ficent administration. 

The scattering of administrative functions among so 
many independent and semi-independent officers, commis¬ 
sions and boards makes the administration inharmonious; 
while the haphazard manner in which functions are distrib¬ 
uted makes it illogical. It is cumbersome because it has been 
developed through a series of accretions, a new agency 
having been established for every new function; and it 
is expensive: first, because of the multiplicity of agen¬ 
cies; second, because so many of the more important 
administrative positions are elective that any incumbent 

”See Chapter III, pages' - 



150 


Government of Oklahoma 


who desires to be reinstated must spend a large part of 
his present term of office in campaigning for another 
term; while any subordinates appointed by him will be 
chosen for their ability as party workers rather than 
their qualifications for their ostensible duties 78 . 

The remedy for the existing situation would seem to 
involve two main steps: first, organizing the state admin¬ 
istrative functions into a few departments under the 
control of the chief executive; second, abolishing all of 
the present boards, commissions and minor offices and 
establishing in their place bureaus or divisions under 
the few departments thus created. 

In case some form of parliamentary organization were 
adopted, which from the standpoint of planning for legis¬ 
lation and the budget, at least, seems highly desirable, 
probably the governor should be elected. He would act 
as the formal representative of .the state; and would ap¬ 
point a chief executive officer to be the working head of 
the administration. The chief executive officer would 
then in turn appoint the heads of the various departments. 

In case the present system of separating the executive 
and the legislative bodies were adopted, the election of 
administrative and executive officers should be confined 
to the governor and lieutenant governor. All others 
should be appointed by the governor (except perhaps a 

78 A recent editorial, entitled “The Melancholy Days Have 
Come,” (Harlow’s Wieekly, May 26, 1922.) well expresses this deplor¬ 
able situation. “The business of the state begins to be seriously im¬ 
paired because of the primary campaign, which will develop an in¬ 
creasing hold upon the state’s officers wit'h each succeeding day of the 
next two months. It is an unfortunate phase of our governmental 
structure which makes it necessary that government he so severely 
dislocated for most of one year out of four. There will be no real 
peace in government in this state until after the November election, 
and it is precisely similar every four years.” 



State Administration 


151 


comptroller general who should be appointed by the leg¬ 
islature) just as all heads of departments in the national 
government are appointed by the president. 

Under either system, these officers should form a cabi¬ 
net for the discussion of state policy and for the harmoni¬ 
ous working out of administrative details. All special 
and minor functions now entrusted to the various boards, 
commissions and officers should be placed under these 
departments. There are always differences of opinion 
as to what departments should be created, and what duties 
should be given to each. By and large, however, all 
activities of government can be conveniently grouped 
under about a dozen functions, to which the departments 
should largely correspond. For the purpose of making 
more definite the plans for a possible reorganization, the 
following departments are suggested: Finance, Education, 
Public Works, Justice, Public Welfare, Agriculture, Trade 
and Commerce, Labor, Health, Local Government, Military 
and Civil Service and Registration. 

The finance department would be organized into sev¬ 
eral bureaus and should have charge of detailed auditing 79 , 
the assessment of taxes, tax collection, tihe prepara¬ 
tion of the budget, the custody and control of money, 
and the accounting and reporting of financial conditions 
for the benefit of the executive departments. The manage¬ 
ment of the school land funds should also be placed under 
the control of this department. 

The education department should have supervision over 
education, the examining of teachers and.the granting of 

T9 As explained elsewhere, the auditing function should be en¬ 
trusted to two different departments of government, the mere de¬ 
tails of the work being done by an executive auditor, while the pre¬ 
scribing of forms and systems, the checking up on administrative ef¬ 
ficiency, and the making of reports to the legislature should be in the 
hands of a comptroller general, responsible to the legislature. 



152 


Government of Oklahoma 


certificates. It might be advisable to give the function 
of the selection of text books to this department in case 
text books are still selected for all the schools of the 
state. The work of selecting the books might well be 
placed in charge of a highly trained specialist in educa¬ 
tion. 

Most of the functions now carried on by the state 
architect, the custodian of the state capitol, the state 
board of affairs, the highway department, the monument 
commission and all public enterprises involving engineer¬ 
ing, construction, etc., should be under the control of a 
department of public works. 

The department of justice might well be organized in 
two divisions, the division of legal information and the 
division of law enforcement. The division of legal infor¬ 
mation should have charge of most of the functions now 
belonging to the attorney-general, except the approval of 
municipal and. county bonds, which might well go to 
the local government department. In case the local gov¬ 
ernment department were given administrative control 
over municipal and county officials, the powers in respect 
to such officers now lodged in the attorney general under 
the “attorney general’s law” might well be transferred 
to it. 

The division of law enforcement should have general 
administrative control and supervision over the .sheriffs 
and prosecuting officers of the state 80 . These officers 
might be put under the civil service and appointments 
might be made from time to time from the three or four 
candidates highest on the list. 

The department of public welfare should be given 
jurisdiction over all penal, charitable and reformatory 

80 See the chapter on Local Government, Chapter XIX, for rea¬ 
sons for putting such officers under state control. 



State Administration 


153 


institutions of the state, which is now exercised by the 
state board of affairs, the board of managers, the board 
of commissioners for the blind, the two boards of trus¬ 
tees of the soldiers' homes, the commissioner of charities 
and corrections, etc 81 . It might well have within its 
organization a board of pardon and parole, which would 
investigate all requests for pardons and paroles, and, per¬ 
haps after full hearing, grant or deny such requests. If 
the governor is to become the active head of administra¬ 
tion, as this plan of reorganization contemplates, he should 
not be burdened with the pardoning of those convicted of 
crimes, for nothing at present takes much more of a gov¬ 
ernor's time than this function. The board of public 
welfare, having its agents throughout the state in the form 
of local welfare officials 82 , and being in intimate touch 
with the penal, charitable and reformatory institutions of 
the state, is in a strategic position to gather the facts, to 
know prison records and to help keep the one pardoned 
or paroled in the straight and narrow path afterward. This 
board should supervise the work of all probation officers. 
It should also have charge of the licensing of unincor¬ 
porated agencies of charity in the state. One of its most 
important functions should be administrative supervision 
over all the county welfare boards 83 . 

The department of agriculture should carry on nearly 
the same functions that it does at present 84 except that 
the work of the game and fish warden should be trans¬ 
ferred to this department. It should also have general 
supervision over the county departments of agriculture 
which are discussed in the chapter on local government. 

81 See Chapter on Care of Special Classes, Chapter XVIII. 

82 See Chapter on Local Goverment, Chapter XIX. 

68 Described in the chapter on Local Government, Ch. XIX. 

M See Chapter XV. 



154 


Government of Oklahoma 


The department of trade and commerce should have 
charge of the regulation of business and industry. This 
important work should be distributed among several large 
divisions or boards. The first of these should have charge 
of the regulation of public utilities. The second should 
regulate corporations and pass upon stock issues—the 
work now done by the issues commission. The third di¬ 
vision should regulate banks and trust companies, while 
the fourth should regulate insurance. A fifth division 
might well have charge of the conservation of natural re¬ 
sources. 

The department of labor should be created to admin¬ 
ister the workmen’s compensation laws, the factory in¬ 
spection laws, the mine inspection laws, and the laws in 
regard to arbitration and conciliation. This department 
should also conduct free employment bureaus, and per¬ 
form other functions made necessary by changes in laws 
or economic conditions. 

As it would seem highly advisable to remove state 
administration as far from politics as possible, secure em¬ 
ployees with training adequate to their duties, and also 
provide well trained, non-political employees for county 
positions, a state civil service and recording depart¬ 
ment should be created. Examinations Q hould be given 
for all positions non-administrative and merely techni¬ 
cal in their nature, except perhaps where unusual quali¬ 
fications are demanded. In general, this would mean 
that all the officers and employees below the rank of 
bureau or division head would be appointed from the civil 
service. Due to the extreme importance of having the 
functions of the county carried out efficiently and with¬ 
out excessive cost it would be highly desirable to have all 
county employees except the commissioners, the man¬ 
ager, and the heads of the suggested departments, ap- 


State Administration 


155 


pointed from those who have passed state civil service 
examinations. 

The present functions of the secretary of state could 
well be given to a special division of the civil service and 
recording department. Probably all the examining and 
licensing of those wishing to practice professions should 
be under the control of such a department. The bar as¬ 
sociation, the medical association, etc., might well act 
in an advisory capacity, in preparing examination ques¬ 
tions and determining tests of proficiency. Most of the 
actual examinations, however, should be conducted by the 
civil service department. 

The department of health should have the power, in 
connection with the advisory public health council 85 , 
to enact a .state sanitary code, to supervise and direct all 
local health authorities, to gather vital statistics, and to 
make extended investigations as a basis of legislative 
action. 

The military department might well remain as at 
present under the control of the governor and the ad¬ 
jutant-general. 

The local government department should have su¬ 
pervision of certain kinds over both counties and cities. 
Its authority over cities should include, as is explained 
more in detail in Chapter XXII, help in the organization 
of the city government or the adoption of its charter, 
control over city officials in respect to their administrative 
efficiency, particularly in the smaller towns and cities of 
the state, supervision over-health and sanitation, super¬ 
vision of public works and municipally owned public 
utilities, and certain control over municipal finance. This 
department should (have similar control over the county. 


85 Described in Chapter NIV. 



156 


Government of Oklahoma 


By requiring reports, examining finances, and making 
proper kinds of inspection, it should be able to insure ef¬ 
ficient county administration. It might well be given 
large financial control over counties. It should audit all 
county accounts, supervise the borrowing policy of the 
county, pass lupon the legality of bond issues and require 
uniform reports from all county officers. 

Such a department should also act in an advisory 
capacity for all county and city officials. With the help 
of this department, the work of city and county admin¬ 
istration would become more efficient and far less costly 
than at the present time. 

In establishing these departments, the constitution 
should merely outline their organization, leaving all de¬ 
tails to be filled in by the legislature, or, better, by 
the administration itself, under a system of administra¬ 
tive ordinances. If the constitution attempts to organ¬ 
ize departments in detail, a highly inflexible system is 
established which cannot be changed to meet varying 
conditions. The matter of salaries for these officers 
should be left to the legislature, which should fix them 
at a figure large enough to attract men of the highest 
qualifications. 

Besides these departments there should be estab¬ 
lished a scientific staff to help the administration col¬ 
lect information, make suggestions and work, out the 
details of policy. Such a staff should be composed of in¬ 
dividuals with a high degree of training in governmen- 
al work, should be appointed, after very strict examina¬ 
tion, by the executive, and should not be changed with 
changing administrations. The fund of information 
which they would soon accumulate would be of enormous 
value to the state in carrying on its work. 

To summarize: The present scattered, unsystematic, 


State Administration 


157 


and irresponsible administrative organization of this state 
should be replaced by a unified, logical, and responsible 
organization, removed as far as possible from political 
influences, and managed by a carefully selected and well 
qualified personnel. 


CHAPTER V. 


THE JUDICIARY 

The judicial power of the state of Oklahoma “is 
vested in the Senate, sitting as a court of impeachment, 
a Supreme Court, District Courts, County Courts, Courts 
of Justices of the Peace, Municipal Courts and such 
other courts, commissions or boards, inferior to the Su¬ 
preme Court, as may be established by law 1 .” It will 
possibly lead to a clearer understanding of this judicial 
system, if we begin with the court of lowest and proceed 
to the court of ultimate jurisdiction, rather than if we 
follow the sequence given in the constitution 2 . 

JUSTICE OF THE PEACE. 

The court of lowest jurisdiction in the .state is the 
justice of the peace court. The constitution is silent as 
to the number of justice courts that may be created, 
except for the provision that one such court shall exist 
for each county, having jurisdiction coextensive with 
the county; and that two such courts shall exist in cities 
over twenty-five hundred in population 3 . The county 
commissioners are directed by law to create in their coun¬ 
ties at least six justice of the peace districts. To this 
they may add additional districts as the public necessity 
requires, but there shall not be more than one justice court 
for each voting precinct 4 . Any city or town having over 

1 Art. VII, Sec. 1, Constitution. 

2 For a full consideration of the laws regulating judicial pro 
cedure, the student is advised to read R. L. 1910, Ch. 60, 61, 62, 63, 
dealing with civil and criminal procedure. 

3 Art. VII, Sec. 18, Const. 

4 It. U. 1910, Sec. 2051, 2055. 

( 158 ) 



The Judiciary 


159 


fifteen hundred people shall have one justice of the peace 
court; over twenty-five hundred, two justice courts; and 
cities over twenty-five thousand, one additional justice 
court for each ten thousand people 5 . The justice courts 
in the cities are in addition to the six districts created 
by the county commissioners. 

One justice of the peace and one constable are elect¬ 
ed for each district at each biennial election to serve 
for a period of two years; and in case of a vacancy a 
justice is appointed by the county commissioners until 
the next regular election. Any qualified elector who is 
a resident of the district may serve as justice of the peace, 
except in pities, where he must be licensed to practice as 
an attorney at law. A constable elected for every justice 
district is vested with the duty of apprehending all vio¬ 
lators of the criminal laws, preserving the peace, and serv¬ 
ing all writs, warrants and executions delivered to him 6 . 
He performs the same duties for the justice courts that 
the sheriff of the county performs for the county and dis¬ 
trict courts. 

The jurisdiction conferred upon the justice of the 
peace courts is coextensive with the county in which 
the justice is elected; however, should an action be 
brought against one or more defendants, jointly or sev¬ 
erally liable, such action may be brought before any jus¬ 
tice court of the county in which either of the defendants 
may reside or be summoned, and the sheriff of any coun¬ 
ty may be directed to bring in the co-defendants in such 
county 7 . 

The justice of the peace court has limited juris¬ 
diction in both civil and criminal cases. Under the con- 


! R. L. 1910, Sec. 2054. 

6 R. L. 1910. Sec. 2053. 2054, 2070. 

T R. L. 1910, Sec. 5351. 



160 


Government op Oklahoma 


stitution, the civil jurisdiction of the justice of the peace 
court is limited to actions for the recovery of money where 
the amount does not exceed $200, exclusive of interest 8 . 
In addition, the justice of the peace has been given by 
law original jurisdiction to try all actions for forcible en¬ 
try and detention of real property 9 , and cases of trespass 
to real property where the damages claimed do not ex¬ 
ceed $200 10 . To dispose properly of a matter within his 
jurisdiction, the justice of the peace may issue orders to 
attach goods of debtors in certain cases, and to subpoena 
and compel the attendance of witnesses in cases before him. 
He has power also, to issue orders for the sale of property 
to satisfy judgments rendered by him, to proceed against 
sureties for costs and bail for the stay of execution, to 
proceed against constables who fail to perform their duty, 
and to solemnize marriages 11 . Jurisdiction is denied in 
actions brought to recover damages for assault and bat¬ 
tery; for libel, slander and malicious prosecution; against 
justices and other officers; for specific performance of 
contracts for the siale of real property; and in actions 
where the title to real property is involved 12 . Civil cases 
in the justice of the peace court are tried without a jury, 
but either party has a right to request a jury by making 
proper guarantee for the payment of the jurors 13 . A jury 
in the justice court consists of six qualified jurors, any 
five of whom may agree upon a verdict, but the parties, 
by agreement, may have a jury of fewer than six 14 . 

Any party may take an appeal from the judgments 

8 Art. VII, Sec. 18, Const. 

B R. L. 1910, Sec. 5503. 

W R. L. 1910, Sec. 5356. 

n R. L. 1910, Sec. 5352. 

U R. L. 1910, Sec. 5358. 

13 For selection of jurors in Justice of reace Court, See p 165. 

14 R. L. 1910, Sec. 5438. 



The Judiciary 


161 


rendered in the justice of the peace court by notifying 
the justice and the adverse party of such an appeal; and 
the justice must within thirty days from the date of the 
judgment, transmit to the appellate court all the records 
in the action, and the cause is tried de novo as to both 
law and fact in the appellate court on the original re¬ 
cord 15 . However, no appeal may be taken from a con¬ 
fession of judgment, nor may an appeal be taken from 
the justice of the peace court in any case involving less 
than twenty dollars 16 . 

For the purpose of proper classification, all crimes 
or public offenses are of two kinds: felonies and misde¬ 
meanors 17 . Felonies include all crimes punishable by 
death or imprisonment in the penitentiary, while misde¬ 
meanors include every other crime. In the exercise of 
its criminal jurisdiction, the justice of the peace court 
may try and determine all crimes less than felonies com¬ 
mitted in the county, where the punishment does not ex¬ 
ceed a fine of two hundred dollars, or imprisonment in 
the county jail for thirty days, or both fine and impris¬ 
onment 18 . Thus all crimes, classed as felonies, and a 
great portion of misdemeanors are excluded from its 
jurisdiction. If, during the trial, it appears that the 
defendant is guilty of a misdemeanor, the punishment 
for which is beyond the jurisdiction of the justice of the 
peace court, the justice must certify the cause to the coun¬ 
ty court for trial 19 . Criminal cases, like civil cases in the 
justice court, may be tried with or without a jury. Should 

19 Art. VII, Sec. 18, Const. 

18 S. L. 1913, Chap. 135. 

17 R. L. 1910, Secs. 2085, 2086, 2087. For the various kinds of 
crimes and their punishment, see Chapter 23, R. L. 1910. 

18 Art. VII, Sec. 18, Const. 

W R. L. 1910, Sec. 6179. 


162 


Government of Oklahoma 


either party require a jury, it shall consist of six jurors, 
any five of whom may render a verdict 20 . 

Any defendant convicted of the commission of a 
crime in the justice court may appeal, by filing with¬ 
in ten days, good and sufficient bond, guaranteeing his 
appearance before the appellate court and payment of 
any fine adjudged against him 21 . Such an appeal 
is a matter of right and may be taken either to the 
county, superior or district court. If the defendant re¬ 
mains in jail awaiting the disposal of his appeal, he is 
given credit on his fine at the rate of two dollars per 
day; and if his fine is liquidated before his appeal is 
disposed of, he is discharged without further proceed¬ 
ings 22 . No appeal from the justice court is dismissed; 
the appellate court must either convict or acquit the de¬ 
fendant. 

In addition to the trial of certain misdemeanor 
cases, the justice of the peace has jurisdiction as an ex¬ 
amining and committing magistrate 23 . To understand 
this jurisdiction better, it might be well to consider 
the various steps in the course of criminal pros¬ 
ecution. The bill of rights of the Oklahoma constitu¬ 
tion makes certain guaranties to the individual citizen, 
among them being that no person shall be prosecuted 
for the violation Of the criminal law in a court of record, 
ecuted without being first indicted or without the filing of an 
Persons charged with a misdemeanor over which 
the justice of the peace has jurisdiction may be pros¬ 
ecuted without being first indicted or without the filing of an 

20 4 Okla. Cr. 324, 111 Pac. 656. 

2l R. L. 1910, Sec. 6183. 

32 Ibid. 

23 Art. VII. Sec. 18, Const. 

24 Art II, Sec. 17, Const. 



The Judiciary 


163 


information but may be tried by the justice without a 
jury, upon a complaint properly verified by the persons 
bringing such accusation; but any person charged with a 
misdemeanor over which the county co'urt has sole ju¬ 
risdiction, must be tried upon information without in¬ 
dictment, unless the judge orders a particular misde¬ 
meanor to be presented to the grand jury. 25 A person 
charged with a felony shall be prosecuted only upon in¬ 
dictment or information. 

No person shall be prosecuted for felony by informa¬ 
tion unless first subjected to preliminary examination be¬ 
fore an examining magistrate. 20 Conducting such ex¬ 
aminations is the chief duty of the justice of the peace 
in the exercise of his criminal jurisdiction. Any person 
knowing of the commission of a public offense and 
knowing the offender, brings a complaint verified un¬ 
der oath before the magistrate, who, being satisfied that 
•the offense has been committed by the defendant, issues 
a warrant for his arrest. 27 When the defendant is 
brought before the magistrate, the magistrate immedi¬ 
ately informs him of the offense charged against him 
and his right to counsel, 28 and proceeds with a pre¬ 
liminary examination. During the course of the exam¬ 
ination, witnesses may be summoned for or against the 
defendant, and he has the right of cro^s-examination. 
The defendant should be discharged if it appears to the 
magistrate that no public offense has been committed or 

25 R. L. 1910, Sec. 5698. 

“The following judicial officers are examining magistrates: 
Justices of the Supreme Court, Judges of the Criminal Court of Ap¬ 
peals, District Judges, Superior Court Judges, County Judges, Justices 
of the Peace and Police Judges. R. L. 1910. Sec. 5628. 

27 As to who is able to make an arrest and under what condi 
tions, see R. L. 1910, Sec. 5645-5666. 

*R. L. 1910, Sec. 5667. 



164 


Government of Oklahoma 


if there is insufficient evidence to charge the defendant 
witn the commission of the crime. If, however, there is 
sufficient evidence to indicate that the defendant has 
committed the crime, he is bound over to the district 
court for trial. If the offense is bailable, the defend¬ 
ant may be released from confinement upon giving good 
and sufficient bond. 29 To prevent false and unjust 
accusations, no preliminary complaint can be filed with¬ 
out the consent of the county attorney; and if the com¬ 
plaint is filed without his consent and the defendant is 
discharged, the cost of the preliminary examination is 
taxed against the prosecuting witness, unless the de¬ 
fendant is likely to escape before the county attorney 
can be consulted. 30 The defendant may waive the pre¬ 
liminary examination, in which case he is bound over im¬ 
mediately for trial. 31 

THE JURY SYSTEM. 

If the defendant is accused by indictment, such in¬ 
dictment is returned by a grand jury, which is a body 
of men consisting of twelve jurors impanelled to inquire 
into all public offenses committed against the state and 
triable within the county. 32 The indictment is an 
accusation in writing presented by a grand jury to a 
competent court, charging a person with a public offense. 33 
The indictment returned by a grand jury should 
not be confused with the verdict of a petit jury. The 
indictment is merely an accusation against the defend¬ 
ant. Under the common law, the defendant is adjudged 

29 R. L. 1910, Sec. 5682. 

80 R. L. 1910, Sec. 5674. 

8t Art. II, Sec. 17, Const. 

32 R. L. 1910, Sec. 5696. For cases triable within the county, 
see R. L. 1910, Sec- 5609-26. 

8S R. L. 1910, Sec. 5717. 



The Judiciary 


165 


innocent until proved guilty. His guilt or innocence is 
determined by the petit jury, which tries the case upon 
the indictment as found by the grand jury. The con¬ 
currence of nine of the twelve jurors is sufficient to 
bring the indictment, which is called a “true bill” and 
charges the defendant with the commission of the crime 
alleged. 34 If nine jurors fail to find a true bill, 
the defendant is discharged. A dismissal of the case does not 
prevent a resubmission if the judge so directs. In the 
investigation of any crime committed against the state, 
the grand jury need not hear the evidence for the defend¬ 
ant, but it is the duty of the jury to weigh all evidence 
presented. The grand jury should return a true bill 
when in its judgment the evidence, unexplained and un¬ 
contradicted, would lead to conviction by a petit jury. 31 
The power of the grand jury may extend to the 
investigation of all classes and grades of crime; to the 
management of public prisons within the county; to cor¬ 
rupt and wilful misconduct of public officers; and silch 
other power as the legislature may impose 36 . A 
grand jury is convened by order of the court having 
power to try felonies on its own motion, or on a petition 
signed by one hundred resident tax payers of the county. 

The jurors for both grand and petit juries are se¬ 
lected by a bdard of jury commissioners, consisting of 
three commissioners appointed by the district judge be¬ 
fore the first day of January of each year. One com¬ 
missioner is appointed from each county commissioner’s 
district and not more than two shall be of the same po¬ 
litical party. The commissioners shall have the qualifi- 


M R. L. 1910, Sec. 5730. 

35 R. L. 1910, Sec. 5722. 

36 Art. II, Sec. 18, Const. R. L. 1910, Sec. 5724. 



166 


Government of Oklahoma 


cations of jurors and cannot be interested in any case 
civil or criminal, pending in any court of the state. 

The commissioners meet the first Mondays in Jan¬ 
uary and July and from the tax roll of the county they se¬ 
lect two lists, each of not fewer than two hundred names, 
or more as the judge may prescribe, of persons to serve as 
j'urors for the ensuing term of court. One list contains the 
names of jurors for the district, and the other for the coun¬ 
ty court. The name of no person, disqualified to serve as 
juror , 37 or who has served on a jury within the pre¬ 
ceding twelve months, shall be included. The last pro¬ 
vision was inserted to eliminate the professional juror. 
The list .shall be made up of persons from the various mu¬ 
nicipal townships, according to the voting strength of 
each township. 

Upon the certification of the list by the commission¬ 
ers, the name of each person is placed upon a uniform 
slip and placed in a box, from which are promiscuously 
chosen enough slips to make up the number of jurors re¬ 
quested by the district judge. Upon the completion of 
the drawing, separate venires are issued for grand and 
petit jurors, and served by the sheriff on the person 
named in the venire, to be present at the time specified. 
The first twenty-four names drawn, if a grand jury is 

87 The following may be jurors: every male citizen residing in 
tbe state who is a Qualified elector of sound mind and discretion and 
good moral character, except justices of the supreme court; judges 
of the criminal court of appeals; district, county and superior court 
judges; sheriff and deputy sheriff; constables: licensed attorneys; 
habitual drunkards; those afflicted with bodily injury amounting to in’ 
firmity; those convicted of some infamous crime or who have served, in 
the penitentiary; persons over sixty years of age; ministers, physic¬ 
ians, undertakers, pharmacists, teachers in the public schools, post¬ 
masters, mail carriers, county and district officials, and members of 
the fire department, are eligible to serve but may claim their ex¬ 
emption as jurors. R. L. 1910, Sec. 3698. 



The Judiciary 


167 


ordered, are summoned to be grand jurors. If a per¬ 
son is not needed as a grand juror, he may be transferred 
to the petit jury panel. If any fraud has been perpetrat¬ 
ed in making up the jury lists the judge may discharge 
the panel and call for a new list. If at any time during 
the term of court the panel of jurors should appear in¬ 
sufficient, the jury may be completed from talesmen, 
or an open venire may be issued to the sheriff for such 
number of jurors as may be necessary to be selected from 
the body of the county, but no person shall be a talesman 
more than once a year. 

The selection of jurors for the county court is sim¬ 
ilar to that for the district court, except that the in¬ 
itial drawing is made up of twenty-four jurors, all of 
whom serve as petit jurors, since no grand jury is 
summoned in the county court. If the regular panel 
for the county court is discharged and the case requires 
a jury, the judge may issue a venire until twelve jurors 
are in the jury box. Each party may have three per¬ 
emptory challenges, and the six remaining jurors try 
the case. 

If a jury is requested by either party in the justice 
of the peace court, the justice makes a list of eighteen 
qualified jurors of the county, from which list each party 
may strike six names, the six remaining constituting a 
panel. If any of these are disqualified, talesmen shall 
be selected until a jury is impanelled. 38 The number 
of jurors in the justice or county court is six. any five 
of whom may return a verdict. But in all of the courts 
of record the jury consists of twelve jurors. In civil cases 
and in criminal cases less than felonies, three-fourths of the 
whole number concurring may render a verdict 39 . 


38 R. L. 1910, Sec. 6156. 

39 Art. II, Sec. 19, Const. 



168 


Government of Oklahoma 


Jurors in a court of record are paid at the rate of 
two dollars per day for attendance upon court, and five 
cents per mile to and from the place of attendance, to be 
p'aid out of the county treasury; in a coroner’s inquest, 
one dollar and a half per day; and in the justice of the 
peace court, fifty cents per day, to be paid by the party 
adjudged to pay costs. Should any irregularity occur in 
a drawing of a jury, it will not be cause for setting aside 
a verdict unless a defendant has "been deprived of a sub¬ 
stantial right. 

THE COUNTY COURT. 

The constitution further provides for the organi¬ 
zation in each county of a county court, presided over 
by a county judge, who is elected at each biennial elec¬ 
tion for a term of two years. 40 The only qualifica¬ 
tions of the county judge are that he must be a quali¬ 
fied elector, a resident of the county,, and a lawyer li¬ 
censed to practice in any court of the state. The salary 
of the county judge is determined by the population of 
the county, ranging from $1850 per year in counties less 
than seven thousand, to $3000 in counties in excess of 
sixty thousand. 41 

The county court exercises civil, criminal, and also 
original probate jurisdiction, coextensive with the coun¬ 
ty. In civil cases the county court has concurrent juris¬ 
diction with the district court, in any amount not ex¬ 
ceeding one thousand dollars, exclusive of interest; 4 " 
except that the county court shall not have jurisdiction 
to try actions for divorce and alimony, against public 
officers for misconduct while in office, for slander and 


40 Art. VII, Sec. 11, Const. 
41 R. L. 1910, Sec. 1839. 
42 Art. VII, Sec. 12, Const. 



The Judiciary 


169 


libel, or specific performance of contract for sale of real 
estate, and cases involving title to real property. 4 * 
The county court has concurrent jurisdiction with the 
justice of the peace court in all misdemeanor cases, 
and exclusive jurisdiction in all misdemeanor cases be¬ 
yond the jurisdiction of the justice court. 

Any party feeling himself aggrieved in a judgment 
in the county court may appeal directly to the supreme 
court of the state in civil cases, and to the criminal 
court of appeals in criminal cases. Such appeals are 
governed by the laws regulating appeals from the district 
court. The right of appeal to the higher courts includes 
appeals from cases originating in the justice or municipal 
courts. 

In the exercise of probate jurisdiction, the county 
court receives and admits to probate the last will and 
testament of deceased persons; appoints executors and 
administrators and settles their accounts; regulates the 
distribution of property of deceased persons; appoints 
guardians of minors, and those mentally unfit to manage 
their own affairs. 44 An appeal arising under probate 
jurisdiction may be taken from the county court to the 
district court, where the case is tried de novo upon ques¬ 
tions both of law and fact. 45 

THU DISTRICT COURT. 

The district court is a court of general jurisdiction, 
except for those cases over which the county court and 
justice court have original jurisdiction. The state is 
divided into twenty-seven judicial districts, each con¬ 
taining one or more counties. The qualified electors of 


43 Art. VII, Sec. 12, Const. 
“Art. VII, Sec. 13, Const. 
46 R. L. 1910, Sec. 1820. 



170 


Government of Oklahoma 


each district elect a judge of the district court for a 
term of four years, whose salary is four thousand dollars 
per annum, and who must possess the following qualifi¬ 
cations: he must be a citizen of the United States, twen¬ 
ty-five years of age, a resident of the state at least two 
years, and the district one year, and a lawyer licensed 
to practice in any court of record, or a judge of the court 
of record, or both judge and lawyer for a period of four 
years preceding his election. 40 In case a district 
judge is unable to serve or the business of the court re¬ 
quires, the chief justice may assign any other district 
judge to hold 'court within the district. If the district 
judge is disqualified to serve, the parties to the cause may 
agree upon a judge pro tempore, or in a case of disagree¬ 
ment a judge pro tempore may be elected by the members 
of the bar present at the term of court. 47 The county com¬ 
missioners may, if the business of tlhe court demands, pe¬ 
tition the supreme court for an additional judge, in which 
case the supreme court will recommend that the governor 
appoint an additional judge to meet the emergency. 48 

The district court has both original and appellate 
jurisdiction. It has original jurisdiction in all civil and 
criminal cases, except where exclusive jurisdiction has been 
conferred upon another court. Misdemeanor cases are 
never tried in the district court, except on appeal from 
the justice or police courts; but to relieve the county 
court of much of its work, the district court has been 
given concurrent appellate jurisdiction with the county 
court. Tlhe district court has power to issue writs of 
habeas corpus, mandamus, injunctions, quo warranto,. 
- "v * *i 


46 Art. VII, Sec. 9, Const. 
47 Ibid. 

«R. L. 1910, Sec. 1782. 



The Judiciary 


171 


certiorari, prohibition, and other remedial writs neces¬ 
sary to carry into effect its judgments. 49 

SUPERIOR COURTS. 

The legislature is empowered to establish additional 
courts, inferior to the supreme court; and in the exercise 
of this power, it has from time to time established ad¬ 
ditional courts to meet a pending emergency. In 1910, a 
superior court was established in every county having 
more than thirty thousand inhabitants, including a city 
over eight thousand, this court having concurrent juris¬ 
diction with the district court in all matters within the 
county, and with the county court in all civil and criminal 
matters, except matters of probate 50 . The judge of 
the superior court was appointed by the governor of 
the state until the general election in 1910, when the quali¬ 
fied voters of each county elected a judge of the superior 
court for a term of four years with the same qualifications 
as the judge of the district court. However, it was not 
long until the superior court was abolished in all except a 
few counties 51 , but subsequent legislatures have re-estab¬ 
lished superior courts, in certain counties, to relieve con¬ 
gestion in the county and district courts 52 . 

THE SUPREME COURT. 

The supreme court of the state consists of nine justices, 
elected by the voters of the state for a term of six years. 
The state is divided into as many supreme court judicial 
districts as there are justices, there being one justice 
from each district. Although one justice is elected from 

49 Art. VII, Sec. 10, Const. For definition of the various reme¬ 
dial writs see Secs. 4882-4927, R. L. 1910. 

“R. L. 1910, Chap. 20. 

81 S. L. 1918, Chap. 77. 

“See S. L. 1915, Chap. 20 and other similar statutes. 



172 


Government of Oklahoma 


each district, all the justices are voted upon by the state 
at large. Voting by the entire state deprives the minority 
of any representation, and hence violates the principle 
of proportional representation. Under the system de¬ 
vised by the constitution, the political party in a majority 
throughout the state elects all the members of the bench, 
while the minority party, even though strongly repre¬ 
sented in certain localities is deprived of any representa¬ 
tion. Justices of the supreme court must have the same 
qualifications as district judges, except that they must be 
thirty years of age and must have served five years as law¬ 
yers or judges. In case of vacancy, the governor appoints a 
justice of the district until the next general election. A ma¬ 
jority of the court constitutes a quorum, and the concurrence 
of a majority of the court is necessary to give an opinion 63 . 
The members of the court elect, on the second Monday of 
each odd numbered year, one of their own number as 
chief justice to serve for a period of two years; and at the 
same time a vice chief justice is also elected, to fill the of¬ 
fice of chief justice when the latter is unable to do so. 

Originally the supreme court consisted of five mem¬ 
bers, but owing to the fact that in the early days of state¬ 
hood this court fell far behind its docket in the adjudica¬ 
tion of cases, the legislature of 1911 created the supreme 
court commission. The commission consisted of six 
members, one from each supreme court district and one 
from the state at large, appointed by the supreme court 
for a term of two years; but the supreme court at its 
discretion could dissolve the commission. 54 In 1917 
the commission was increased to nine members, appointed 
by the governor with the consent of the supreme court. 
The commission, under the rules and regulations of the 


“Art. VII, Sec. 8, Const. 
M S. L. 1911, Chap. 167. 



The Judiciary 


173 


supreme court, could aid in disposing of the cases coming 
before the court. Its opinion under the constitution could 
not be final, being subject to modification, adaptation, re- 
mandation or rejection by the supreme court. The legis¬ 
lature in 1919 refused to pass an appropriation for the su¬ 
preme court commission, thus in effect abolishing it, 
but enlarged the supreme court to its present size of nine 
members. The 1923 legislature created a supreme court 
commission of fifteen members, who are to be appointed 
by the governor, subject to the approval of the supreme 
court. (S. L. 1923, Ch. 21). 

To expedite matters, two divisions of the supreme court 
are created, each consisting of four justices, sitting with 
the chief justice, vice chief justice, or such other jus¬ 
tices as may be appointed. Each division may, with the 
exception of constitutional cases, hear and determine cases 
coming before the supreme court. A majority of the 
court is necessary to an opinion; and in case any member 
of a division dissents, the case shall be determined by 
the whole court. 'Cases involving the constitutionality of 
a statute are assigned for oral argument or submitted to 
the entire court, and no former adjudication of the court 
shall be over-ruled without a conference of all the members 
of the supreme court. 55 Partially to handle the work 
done by the commission, the legislature provided for two 
supreme court referees, the incumbent to be appointed 
by the supreme court. 

The supreme court possesses both original and appel¬ 
late jurisdiction. Its original jurisdiction extends to a 
general supervision over inferior courts and commissions 
established by law. 56 Tlhe constitution gives the su¬ 
preme court original jurisdiction to determine all appeals 

B5 S. L. 1919. Chap. 127. 

58 R. L. 1910, Sec. 5236. 



174 


Government of Oklahoma 


from the corporation commission. In passing upon an 
appeal, the supreme court may reverse, modify, or re¬ 
mand any ruling of the corporation commission, but the 
findings of the corporation commission are by the con¬ 
stitution deemed to be prima facie reasonable and correct. 
Likewise, appeals from the opinions of the secretary of 
state in a hearing on an initiated or referred petition are 
taken to the supreme court in original proceedings. The 
supreme court has been given further original jurisdiction 
in all cases involving the removal of the state capitol and 
state charitable and educational institutions, and in all 
actions to enjoin the enforcement or collection of an ille¬ 
gal tax or assessment. 

The appellate jurisdiction of the supreme court extends 
to all cases in law and equity, and to such additional jur¬ 
isdiction as may be conferred by law. In the exercise of 
its appellate jurisdiction it hears appeals from the dis¬ 
trict, superior and county courts. 

In 1909 the legislature created the criminal court of 
appeals to have exclusive appellate jurisdiction in all 
criminal cases. This court consists of three judges hav¬ 
ing the same qualifications as justices of the supreme 
court and serving for a term of six years. The state is 
divided into three districts called the southern, northern 
and eastern districts. The political parties of each dis¬ 
trict nominate their candidates, who are voted upon by the 
state at large. The court is organized in the January fol¬ 
lowing each biennial election, and tlhe judge having the 
shortest term serves as presiding judged 

The jurisdiction of the criminal court of appeals is 
limited to criminal cases appealed from the district, coun¬ 
ty or superior courts. All cases involving any constitution¬ 
al questions are decided by the supreme court of the 


5a S. L. 1910, Chap. 18. 



The Judiciary 


175 


state. The criminal court of appeals may, however, ex¬ 
ercise certain original jurisdiction such as the hearing on 
a petition for habeas corpus. 

MUNICIPAL COURTS. 

In addition to the system of state courts to try all viola¬ 
tions of state law, courts are created to try all viola¬ 
tions of municipal ordinances. 57 Under the home 
rule provision of the Oklahoma Constitution all cities of 
over two thousand inhabitants may frame their own form 
of government. 5 " Those cities that have taken advan¬ 
tage of the home rule provision have established police 
courts to try all offenses against the city ordinances. Prior 
to 1915 a trial by jury was not necessary in the police 
court. 59 Although the constitution states that the 
right of trial by jury shall be and remain inviolable, 
petty offenses, such as the violation of municipal ord¬ 
inances, were tried by summary proceedings before 
the constitution was adopted; and the constitution 
does not extend the right of trial by jury. However, the 
legislature in 1915 60 declared all actions for the vio¬ 
lation of municipal ordinances to be criminal proceedings 
and to be governed by the laws relating to criminal pro¬ 
cedure, which under Article II, Sec. 20 of the constitu¬ 
tion, made a trial by jury mandatory for all violations 
of municipal ordinances. 91 The legislature in 1917 
modified the Act of 1915 by permitting all offenses 
against municipal ordinances which are punishable by 
fine to be tried without a jury 62 ; but in all other of- 

57 R. L. 1910, Sec. 727. 

“Art. XVIII, Secs. 3a and 3b, Constitution. 

“In re Simmons. 4 Okla. Cr. 662, 112 Pac. 951. 

60 S. L. 1915, Chap. 147. 

01 Ex Parte Johnson, 13 Okla. Cr. 30, 161 Pac. 1097. 

«S. L. 1917, Chap. 127. 



176 


Government of Oklahoma 


fenses punishable by imprisonment, the defendant is en¬ 
titled to a trial by jury in the justice of the peace court, 
and appeal is permitted from the municipal court to the 
county court and finally to the criminal court of ap¬ 
peals. The criminal court of appeals has recently de¬ 
cided that a municipal court is a constitutional court, and 
is bound by the constitutional provision that all prosecu¬ 
tions in the police court must be made upon a verified 
written complaint; and that section 650 R. L. 1910, which 
provides that a complaint brought by a policeman against 
any person need not be in writing, is in conflict with Art. 
II, Section 17, of the Bill of Rights. It has been further 
held that any offense against a municipal ordinance which 
is punishable by a fine greater than twenty dollars or im¬ 
prisonment, cannot be enforced by summary proceedings, 
but the defendant is entitled to a trial by jury. No doubt 
the recent decision has greatly handicapped the power of 
the municipality to enforce its ordinances; and the leg¬ 
islature should restore to cities the power of summary en¬ 
forcement that they enjoyed previous to the laws of 1915. 

CRITICISMS AND RECOMMENDATIONS. 

The judicial systems of the various states have long 
been subjected to searching criticism, both by members of 
the legal profession and by the public, upon the ground 
that the dispensing of justice is unduly delayed and that 
litigants are greatly hampered in obtaining their rights, 
by cumbersome procedure and by the inefficient func¬ 
tioning of the courts. Congestion of dockets is common, 
both in trial courts and in appellate bodies, opportunities 
for dilatory tactics are numerous and the enforcement of 
rights through judicial tribunals is ordinarily a matter of 
years. In 1919, the committee on special legislation of 
the Oklahoma Bar Association recognized the justice of 


The Judiciary 


177 


this criticism as applied to Oklahoma. 63 In discus¬ 
sing the cause of this breakdown of justice, the committee 
suggested the following factors as contributing to it: the 
lack of a responsible administrative head of the state judi¬ 
cial system, the impossibility of retaining experienced 
judges, due to short and precarious tenure and inadequate 
compensation; the vesting of the power to make rules of 
judicial procedure in the hands of the legislature, which 
is composed largely of laymen and therefore makes 
rules which often work very poorly yet cannot be changed 
without great difficulty. There is no doubt that all of 
these factors do contribute to the inefficiency with which 
our judicial system works, but it would seem that there 
are other factors which play a considerable part in bring¬ 
ing about that condition. 

The committee believes that the judges of the inferior 
courts are responsible to a considerable degree for the 
unsatisfactory functioning of these courts, and places the 
blame for this situation upon the fact that they do not re¬ 
main in office long enough to become experienced and ef¬ 
ficient. All of this is true, but it must also be remembered 
that, upon the average, we do not place in the judgeship 
the men best fitted for the position. The remuneration of 
the county and district judges is far below that which a 
lawyer of ability and established practice can earn in pri¬ 
vate life. Popular election entails costly primary and 
general election campaigns. Many of the incidents of 
such campaigns are obnoxious to those possessing the high¬ 
est type of judicial temperament, who, therefore, do not 
become candidates. Moreover, the average elector does 
not have available the information necessary to enable him 
to judge intelligently of the technical qualifications of the 

“Report of special Legislative Committee, Oklahoma State 
Bar Association 1919, pages 6 and 7. 



178 


Government of Oklahoma 


various candidates; so is forced to rely upon tlhe impression 
made by them in the campaign and upon the recommenda¬ 
tions of members of the bar. Neither affords a certain and 
specific method of securing the choice of men who are es¬ 
pecially fitted for the judicial office. No professional or 
educational qualifications, other than admission to the bar 
for varying periods, are prescribed for candidates, while 
justices of the peace in rural districts are not even re¬ 
quired to come up to this low standard. 

The committee cites the crystallization of cumbersome 
and inept rules of procedure into law by legislative en¬ 
actment as one of the causes of delay in the administra¬ 
tion of justice, and this is true; but it must also be remem¬ 
bered that trial judges have a considerable discretionary 
power which they could use to discourage dilatory tactics 
and to speed up the wheels of justice. But since judges 
must go before the people for re-election, they hesitate 
to arouse opposition from the bar which might make their 
return to office unlikely. As a result, practitioners have 
come to regard the use of frivolous dilatory motions, de¬ 
murrers, and so forth, and tlhe employment of other tactics 
in order to gain time as privileges to which they are enti¬ 
tled as of right. All this is very convenient for the trial 
lawyer, but adds very materially to the delay which liti¬ 
gants must encounter in securing their j'ust rights. If 
judges were made more independent of the favor of the 
local bar in the matter of tenure of office, it is likely that 
this evil would be alleviated. 

Another defect in the administration of justice through 
our court system arises, not from the machinery of tlhe 
system, but from the character of relief afforded by it. 
With certain exceptions in special fields, our law is nega¬ 
tive in character, rather than positive. It waits until 
some infraction of a legal right has occurred and then 


The Judiciary 


179 


awards damages or assesses a penalty for that infraction. 
There is no provision for “declaratory judgments” by 
which parties to a dispute as to their respective legal 
rights under a given situation may secure an authorita¬ 
tive adjudication of such rights by a court as a guide to 
future action. The result is that parties often find them¬ 
selves in a situation in which they are in doubt as to the 
respective rights of each, yet must take the risk of acting 
in such a manner as to subject themselves to an action 
for damages. Such a situation presses the legal fiction 
that every man is presumed to know the law, to an illog¬ 
ical and harmful extreme, and introduces a baneful uncer¬ 
tainty into many business transactions. This was rec¬ 
ognized by the above mentioned committee, which in¬ 
cluded in its recommendations for reform the adoption of 
the declaratory judgment. 64 

The committee, in its report to the Bar Association, 
recommended a concrete plan for the complete reorganiza¬ 
tion of our judicial system in the form of a proposed con¬ 
stitutional amendment, based upon the principle of a 
state-wide unified court plan proposed by the American 
Judicature Society of Chicago. 65 The plan involves 
a somewhat radical reconstruction *of the state judiciary, 
and so far has not received the official endorsement of 
the Bar Association; but since it is the result of careful 
study by some of the most eminent and able attorneys of 
the state, and, since, upon the whole, it seems to offer a 
practical and workable remedy for many of the present 
defects of our court system, it is worthy of thoughtful 
consideration by the people of the state. Briefly, the 
plan contemplates the consolidation of all of the present 
courts of the state into one general court of judicature. 


M Op. cit. page 23. 
,3 Op. cit. page 13, ff. 



180 


Government of Oklahoma 


This court would be invested with the following functions. 
the judicial function, or the adjudication of controversies 
brought before the court in the form of cases, as at pres¬ 
ent ; the administrative function, concerned with keeping 
efficient the administration of justice through the judicial 
function; and the rule-making function delegated to the 
court exclusively, rather than shared with tlhe legislature 
as at present. 

The judicial function of the general court of judicature 
would be exercised through three branches, designated res¬ 
pectively the supreme court, the district court and the 
county court. The supreme court would consist of one 
chief justice and twelve associate justices. The chief 
justice would be the administrative head of the general 
court of judicature, and would not devote much of his 
time to purely judicial duties, although he would be al¬ 
lowed to participate in such duties at any time. The su¬ 
preme court would exercise all of the jurisdiction, orig¬ 
inal and appellate, now vested in the supreme court and 
the criminal court of appeals. It would be divided into 
at least four sections, consisting of from three to five 
justices, for the purpose of transacting its business. At 
least one of the sections must be a “criminal division,” 
and justices would be allowed to sit on more than one 
division. The concurrence of three justices would be suf¬ 
ficient for the decision of any question, by a division, and 
ordinarily, all questions before the supreme court would 
be determined by the division to which they were as¬ 
signed. In cases necessarily involving the validity of 
an act of the legislature, or the interpretation of the 
Constitution of the United States or of Oklahoma or of an 
act of Congress or treaty of the United States, or where 
a proposed decision is claimed to be contrary to a former 
decision of the court or of one of its sections, the case 


The Judiciary 


18J. 


would be considered and decided by the entire court. The 
chief justice would also have the right to order any case 
to be so heard. Members of the supreme court would 
be required to be qualified electors, thirty-one years of 
age, residents of the state for five years, and for ten 
years preceding selection to have been either in active 
practice at the bar or judges of a court of general juris¬ 
diction. The chief justice wo'uld be. elected by popular 
vote for a term of four years at each gubernatorial*elec¬ 
tion; associate justices would be chosen by the chief 
justice for a term of eight years. At each gubernatorial 
election, the names of those justices whose terms expired 
prior to the next such election would be placed before 
the people upon a non-partisan ballot for an expression 
of opinion as to whether or not they should be continued 
in office. Those who received a favorable majority would 
be deemed elected for another term; in case the vote as 
to any justice proved unfavorable, his office would become 
vacant at the expiration of his term; and the chief jus¬ 
tice would appoint his successor. In addition to being 
subject to impeachment as at present, justices might be 
removed by a two-thirds vote of both houses of the leg¬ 
islature, after being given notice and an opportunity to be 
heard. Temporary justices might be appointed by the 
chief justice when necessary. The salary of the chief 
justice would be fixed at $8,000 per annum, while asso¬ 
ciate justices would be paid $7,500. The salaries might 
be increased by the legislature, but not decreased. 

The district court would have substantially the same 
jurisdiction as that now exercised by the district courts 
of the state. However, its organization would be mater¬ 
ially different from that now obtaining. The state would 
be divided into six judicial districts, in each of which there 
would be several district judges, the whole number be- 


182 Government of Oklahoma 

ing the same as at the present time. At the head of each 
district would be a presiding judge, selected by the chief 
justice. This presiding judge would have power to pre¬ 
pare the calendar of cases for trial in his division, to ap¬ 
portion the cases among different calendars and judges, 
and so forth, and to exercise a general supervisory influ¬ 
ence over the work of the district court within his division. 
Provision is made for quarterly meetings of the judges in 
each division, and for annual meetings of all the district 
judges of the state for the purpose of discussing the ad¬ 
ministration of justice and suggesting such improvements 
as may seem desirable to the higher authorities. District 
judges would ibe nominated and elected by the people as 
at present, but from the new districts. Their term of of¬ 
fice would be .six years. (Compensation would remain at 
the present sum, except that each judge would receive ac¬ 
tual expenses while outside the county of his residence on 
official duty, and the presiding judges would receive an 
additional one thousand dollars per annum. 

The county court would exercise substantially the same 
jurisdiction as at present. In each county there would 
be a county judge elected for a term of four .years by 
popular vote in the same manner as is now used. Asso¬ 
ciate justices, one for each thirty thousand population in 
excess of the first thirty thousand in each county might 
be appointed, when ordered, by the chief justice with 
the consent of the presiding judge of county courts. 
This last officer would be appointed by the chief justice 
and vested with a general power of inspection over the 
work of the county court in the various counties. Provi¬ 
sion is made for annual meetings of the county court 
judges similar to those prescribed for district judges. 
The compensation of county judges, until increased by the 
legislature, remains the same as at present. 


The Judiciary 


183 


The present justice'of the peace courts would be abol¬ 
ished and would be replaced by district magistrates in 
each county attached to the county court. The number 
of magistrates in each county would be fixed by the 
presiding judge of county courts with the concurrence of 
the dhief justice. The number of districts into which each 
county would be divided would be fixed by the presid¬ 
ing judge, Ibut the actual laying out of districts 
would be done by the county commissioners subject to the 
approval of the county judge, and the magistrates would 
be appointed by the county commissioners upon nomina¬ 
tions made by the county judge. Their terms would expire 
with that of the county judge. Their compensation would 
be fixed by the board of judicial regents, hereinafter 
mentioned, at not more than $2,000.00 per annum, and 
their jurisdiction would include such part of the jurisdic¬ 
tion of the county court as might be assigned to them 
by the judicial council. The district magistrates would 
be under the immediate supervision of the county judge 
of each county, and that official would have authority at 
any time before judgment to transfer a case from a dis¬ 
trict magistrate to the county judge or associate county 
judge. 

The administrative supervision of the judicial system of 
the state would be vested in the chief justice and in the 
board of judicial regents, consisting of the chief jus¬ 
tice, one associate justice of the supreme court chosen 
by that body, tlhe presiding judges of the six judicial dis¬ 
tricts and the presiding judge of the county court. The 
chief justice would be vested with the general supervision 
of the entire judicial system. The board of judicial re¬ 
gents would have power to make rules for the internal 
administration of the court system, as for example, to 
regulate the number of judges in each division of the 


184 


Government of Oklahoma 


district court and to fix the times' and places for hold¬ 
ing sessions of the district and the co'unty courts. The 
making of rules of judicial procedure would be assigned 
to the judicial council, formed by adding to the member¬ 
ship of the board of judicial regents all of the justices of 
the supreme court. 

The present offices of clerk of the supreme court and 
of court clerks in the several counties would be consoli¬ 
dated into the office of clerk of the general court of ju¬ 
dicature. The incumbent of this office would be appoint¬ 
ed by the judicial council and would hold office at its 
pleasure. Each county would have a deputy clerk, elected 
by the people as is the court clerk at present. In addi¬ 
tion, the district magistrates in each county would be ex 
officio deputy clerks, and assistant deputies might be ap¬ 
pointed in each county as deputy court clerks are now ap¬ 
pointed. 

Provision is made for an annual meeting of all of the mem¬ 
bership of the general court of judicature to consider the 
working of the judicial system, the effect of the rules of 
procedure, and such improvements as may appear desir¬ 
able in the interest of better administration of justice. 

The program involved in this proposal is extremely in¬ 
teresting, and, upon the whole, seems likely, if adopted, 
to result in a great improvement in our judicial system. 
The unification of our present headless aggregation of 
courts into one system, with provision for an adequate su¬ 
pervision of the lower courts, thus giving opportunity to 
eliminate inefficient practices, should result in apprecia¬ 
bly improving the general quality of judicial action. The 
giving of the rule-making authority to the courts would 
undoubtedly result in better and more flexible procedure. 
The increased tenure and better pay accorded to the ap¬ 
pellate judges should result in attracting lawyers of the 


The Judiciary 


185 


highest type to these positions, and their choice to these 
places is more likely to ensue from appointment by the 
chief justice than from popular election. The provision for 
popular election of the chief justice is from some view¬ 
points undesirable. The qualities necessary to an efficient 
holder of that position are legal knowledge and adminis¬ 
trative ability, neither of which is likely to be a controll¬ 
ing factor in the outcome of a political campaign. How¬ 
ever, the only alternatives to popular election are execu¬ 
tive appointment, selection by the legislature, or choice 
by the judiciary. The first two might be undesirable as 
tending to destroy the independence of the courts, al¬ 
though executive appointment has not had that effect upon 
the Federal judiciary, while the last would undoubtedly 
be condemned by public sentiment as tending to create a 
judicial oligarchy. However, if the chief justice is to 
be an elective officer, it would seem that he should be 
elected upon a non-partisan ballot, as there is no reason 
whatever for making his choice dependent upon party af~ 
filiation. The provision for a popular referendum upon the 
reappointment of justices of the supreme court seems 
good. It obviates the demagogic criticism of judicial ir¬ 
responsibility that is always raised at any proposal to re¬ 
move judges from the list of elective officials, while the 
fact that the question of reappointment is to be submitted 
upon a non-partisan ballot, and that no opposing candi¬ 
date may appear upon the ballot ensures that no judge will 
be retired by this method unless there is a widespread 
and well-founded demand for his removal. Campaign ex¬ 
penditures in this sort of an election will be very light. 
The division of the supreme court into four or more sec¬ 
tions for the consideration of ordinary cases would re¬ 
lieve the present congested condition of the docket, and 


186 


Government of Oklahoma 


materially reduce the time required to secure the final ad- 
judication of cases. 

It does not seem that the committee has been so fortun¬ 
ate in its proposals for the betterment of courts of the 
first instance. While the provision for administrative 
control of these courts will undoubtedly greatly improve 
their operation, it must be remembered that most of the 
responsibility for the way in which these courts function 
rests upon the local judges. It has been in lowering the 
caliber of the judges in our trial courts that inadequate sal¬ 
aries, insecuriy of tenure and popular election have had 
their worst results, yet the proposal retains all of these un¬ 
desirable features. It would seem wise to provide for a reas¬ 
onable increase in salaries, and to vest the choice of these 
judges in the board of judicial regents, subject to popular 
approval of reappointment as in the case of justices of 
the supreme court. The same criticism applies to the pro¬ 
posed method of choosing deputy clerks. They might well be 
chosen by the county judge. 

The district magistrates would undoubtedly be an im¬ 
provement over the present justices of the peace, but it 
is to be regretted that the system proposes to retain the 
trial de novo upon matters of fact on appeal from their 
decisions. The result of allowing such trials is to make the 
first verdict as to facts binding only at the option of the 
defeated party. If a court is competent to hear and decide 
upon facts -at all, it is surely competent to have its decision 
as to those facts accepted on appeal, and trials de novo in 
the upper court simply add to the delay in the administra¬ 
tion of justice. 

In general principle, the proposed reorganization seems 
sound and should be used as the basis for the reorganiza¬ 
tion of our court system which must some day be made 
in the interest of justice. 


CHAPTER VI. 

THE CORPORATION COMMISSION. 

Before beginning upon the consideration of the regulation 
of public utilities in Oklahoma, a word concerning the 
history of utility regulation in general will not be inap¬ 
propriate. In the early development of public utilities, 
both national and state governments maintained a policy 
of non-interference. By subsidies in the form of land 
grants, bonuses, valuable franchises, and tax exemptions, 
they offered every possible inducement to the young and 
growing utility. In the performance of their public du¬ 
ties, the public service corporations were limited only by 
their common law obligations; namely, (a) to charge only 
a reasonable rate, (b) to provide safe and adequate facili¬ 
ties, (c) to serve all who applied, (d) to engage in no dis¬ 
crimination. It soon became apparent, however, that mere 
court control utterly failed in the enforcement of the com¬ 
mon law duty of public service corporations, and as a re¬ 
sult a reaction against judicial regulation set in. Under a 
burden of unjust discrimination, inadequate service, extor¬ 
tionate rates, and a vicious system of rebates, one state 
after another, as well as the national government, adopted 
some method of supervision. 

Massachusetts led the way in 1869 with the creation of 
the Railway Commission, and the national government fol¬ 
lowed in 1887 With the organization of the Interstate 
Commerce iCommission. These early commissions pos¬ 
sessed only supervisory and recommendatory powers. 
They heard complaints, inspected the physical and finan¬ 
cial management of the railroads, and made such recom¬ 
mendations as they deemed necessary; and it was not until 
the beginning of the present century that public utility 

(187) 


188 


Government of Oklahoma 


commissions were vested with the power of rate making 
and mandatory regulation. 

In Oklahoma during the territorial days, no commission 
existed for the regulation of the rates and the services of 
public service corporations. The laws of the territory 
provided that common carriers should be regulated by the 
laws pertaining to common carriers, which were simply 
a reiteration of their common law duty as to reasonable 
rates and adequate servicce 1 ; and in case the common 
carrier failed to perform its duties or imposed an unreas¬ 
onable rate, the individual thereby injured could in a pri¬ 
vate suit against the carrier recover damages to the ex¬ 
tent of his injury 2 . This remedy in the last analysis 
proved to be a very ineffective and empty one. During 
the days of the territory no attempt was made at a scien¬ 
tific regulation of rates. If a rate appeared unreasonably 
high, the only remedy was an appeal to the courts for an 
injunction to prevent its enforcement, or the legislature 
could by law establish a rate. While the power of the 
legislature to establish a rate was unquestionable, yet no 
adequate machinery existed by which the reasonableness 
of a rate or regulation of service could be absolutely and 
scientifically determined. Owing to the variety of elements 
that enter into rate-making, the legislature was unable sat¬ 
isfactorily to handle the matter. An appeal to the courts 
was not a satisfactory solution of the question. When a 
case arose in which it became necessary to determine the 
reasonableness of a rate, either to protect the public 
against unreasonable charges or to protect the pub¬ 
lic service corporation against rates so low as to amount 
to confiscation of property, the courts could enjoin the un- 


’Sec. 1035 Laws 1893. 
2 See. 1036 Laws 1893. 



The Corporation Commission 


189 


reasonable rate. But here the power of the courts ceased, 
as they did not possess the power to fix rates for the future, 
for the well-grounded reason that rate fixing is a legisla¬ 
tive function, and vesting the courts of the land with such 
duties is a violation of our system of division of powers 3 . 

In place of this unsatisfactory system of legislative and 
judicial control, Oklahoma, in common with other states 
in the Union, provided a commission with mandatory 
powers of rate-making and regulation. State commissions 
have been given, both as to equipment and rate-making, 
such mandatory powers that administrative regulation has 
been substituted for legislative control. Vesting a com¬ 
mission with such vital functions as rate-making and man¬ 
datory regulation was a revolution in the matter of the 
delegation of legislative authority, but in view of the stu¬ 
pendous growth of public service corporations, their 
wealth and influence, and their close connection with the 
public welfare, such a step was not only wise but highly 
necessary and expedient. 

It is the purpose of this chapter to discuss: 

(a) The organization of the commission. 

(b) The jurisdiction of the commission. 

(c) Appeals from orders of the commission. 

(d) Criticisms and recommendations. 

THE ORGANIZATION OF THE COMMISSION 

The corporation commission of Oklahoma is a body 
created by the constitution, consisting of three members 
elected by the people and serving for six years. Their 
tenure of office is so arranged that the term of one mem¬ 
ber expires every two years. In case of a vacancy, the 
governor appoints a member of the commission to serve 
until the next general election, when a successor is elected 


J See note, 8 L. II. A. (ns) 529 and cases there cited. 



190 


Government of Oklahoma 


to fill out any unexpired term 4 . The constitution places 
certain qualifications upon the members of the com¬ 
mission, among them being that each must be a resi¬ 
dent of the state two years before election, a qualified 
voter under the constitution, and be thirty years of age. A 
member of the commission shall not, directly or indirect¬ 
ly, be interested in any public service utility over which the 
commission has jurisdiction, and if he should voluntarily 
become so his office becomes vacant. Should he become 
interested other than voluntarily, a reasonable time is 
given him to dispose of his interest. If he does not do so his 
office becomes vacant 5 . The commission is organized by 
the election of one of its own members as chairman and 
the appointment of a secretary. A majority of the com¬ 
mission constitutes a quorum, and the concurrence of a 
majority of the commission is necessary to decide any 
question. 6 Each commissioner receives a salary of four 
thousand dollars per annum 7 , while that of the secretary 
is fixed by the legislature 8 . 

Under Article IX, Sec. 18, of the Oklahoma Constitu¬ 
tion, the corporation commission is given the power of 
supervising, regulating, and controlling transportation and 
transmission lines in all matters relating to the perform¬ 
ance of their public duties, their charges therefor, and of 
correcting abuses and preventing unjust discrimination 
and extortion by such companies; and to that end the com¬ 
mission from time to time prescribes rates, charges, class¬ 
ification of traffic, and requires companies to establish 
and maintain such public service, facilities, and conven- 

4 Art. IX, Sec. 15, Const, of Okla. 

5 Art. IX, Sec. 10, Const, of Okla. 

®Art. IX, Sec. 18a, Const, of Okla. 

7 Sec. 15, Schedule to the Const, of Okla. 

8 S. L. 1919, Ch. 211 fixes the salary of the secretary at $2,000 
per annum. 



The Corporation Commission 


191 


iences as may be reasonable and just. The term transpor¬ 
tation lines is defined in the constitution as including rail¬ 
roads, street railroads, canals, steamboat lines, freight car 
companies (or associations), express companies, sleeping 
car companies, car corporations, or companies in any way 
engaged in such business as a common carrier over a route 
acquired wholly or in part under the right of eminent do¬ 
main 9 . The term transmission line is defined as including 
telegraph and telephone lines 10 . It was at first considered 
that the jurisdiction extended to all public service corpor¬ 
ations. This view was soon dispelled by the courts which 
held that the constitution did not give the corporation 
commission general jurisdiction over all public service 
companies 11 . Under the constitution public service cor¬ 
porations include all persons, partnerships, and corpora¬ 
tions authorized to exercise the right of eminent domain 
or to use any right of way or public highway in a manner 
not permitted to the general public 2 . The jurisdiction of 
the commission being a delegation of legislative power, it 
is given a strict construction and is limited to those utilities 
expressly mentioned within its provisions. Thus all com¬ 
panies exercising the right of eminent domain were ex¬ 
cluded from the jurisdiction of the commission save trans¬ 
mission and transportation companies, which for all prac¬ 
tical purposes included railroads, street railroads, tele¬ 
phone and telegraph lines; and that large class of public 
service corporations known as municipal utilities were 
excluded from the jurisdiction of the commission. How¬ 
ever, the jurisdiction thus given the commission by the 
constitution is by no means exclusive, but the legislature 

9 Art. IX, Sec. 34, Const, of Okla. 

10 Art. IX, Sec. 34, Const, of Okla. 

"Shawnee Gas and Electric Company v. Corporation Commission. 
35 Okla. 454, 130 Pac. 127. 

12 Art. IX, Sec. 34, Const, of Okla. 



192 


Government of Oklahoma 


may by law bestow upon the commission additional pow¬ 
ers and duties 13 covering a wide range of action. The 
commission may be vested with power to prescribe rates 
and charges to be observed in the conduct of any business 
Where the state in the first instance has the power to pre¬ 
scribe rates and charges 14 . By virtue of the foregoing pro¬ 
vision the power of the commission can be made coexten¬ 
sive with the police power of the state. 

This raises the fundamental question: to what extent 
may the state proceed in the original matter of regulation 
of business? It is generally conceded that actual or vir¬ 
tual monopoly subjects the business to regulation by the 
state. Every business granted the right of eminent 
domain is given a privilege denied the public gener¬ 
ally. In accepting the privilege, those engaged in such 
business agree to devote it to a public use to the extent 
that the public has an interest in its operation,, But the 
regulatory powers of the state need not stop with those 
businesses that are monopolistic or possess the right of 
eminent domain or require a franchise for their operation, 
but may properly extend to any employment which by 
conditions, location, or economic importance gives those 
who conduct it virtual control over the public in a matter 
vital to their welfare. The test whether or not a business 
is public should not be whether it requires a franchise for 
its operation or possesses the right of eminent domain; 
but whether it is public or private should be determined 
by the relation of the public with respect to its operation. 
A striking example is the case of i ce plants. Although 
they are not inherently monopolistic and are required 
to obtain no franchise, yet their rates and charges 
so vitally affect the public interest that they are now con- 


13 Art. IX, Sec. 19, Const, of Okla. 
14 Ibid. 



The Corporation Commission 


193 


sidered a public business and subject to state supervision. 
This bears upon the position taken by the corporation com¬ 
mission, as will be pointed out later. 

The commission may also be vested with power in con¬ 
nection with the assessment of property of corporations, 
or appraisments of their franchises for taxation, or with 
the investigation of the subject of taxation generally, 
15 The power given the legislature to extend the juris¬ 
diction of the commission is neither mandatory nor ex¬ 
clusive, but the legislature may in its discretion grant re¬ 
gulatory powers to commissions other than the corpora¬ 
tion commission 16 . 

From the foregoing it is obvious that the potential 
powers of the commission are extensive. The Oklahoma 
supreme court, in the case of the St. Louis and San Fran¬ 
cisco Railroad Company versus Williams, et al. 17 de¬ 
clared: “The Corporation Commission, by virtue of the 
provisions of Article IX of the Constitution, is invested 
with extraordinary powers, being authorized to exercise 
not only legislative, but also executive, administrative, 
and judicial powers.” 

The first legislature extended the jurisdiction of the 
commission so as to include control and supervision over 
the physical connection and the switching facilities of 
the railroads at all junction points and incorporated towns 
where one or more railroads “enter or are included.” 18 
By force of this provision the commission is vested 
with the power to hear all complaints with reference to 
the switching and transfer facilities of the railroad com¬ 
panies, and may, upon investigation or upon its own mo- 

15 Art. IX, Sec. 19, Const, of Okla. 

“Insurance Co. of North America v. Welch ; 49 Okla. 620; 154 Pac. 48. 

17 25 Okla. 662; 107 Pac. 428. 

“Laws 1907-8, Ch. 18, p. 226. 



194 


Government of Oklahoma 


tion , issue orders requiring them to maintain such physi¬ 
cal connections—including switching facilities and union 
depots—as the public interest may require. However, 
such order of the commission must be predicated upon 
a gift to the railroad of the right-of-way, or its sale at 
such reasonable cost as the commission may deem proper. 
The cost of the (construction and maintenance ojf sucih 
facilities shall be borne by the respective companies as 
they may agree, or, in case of disagreement, as the com¬ 
mission may direct. In addition to the power of regula¬ 
ting and controlling the conduct of the railroad com¬ 
panies in relation to their public duties, the commission, 
by virtue of the foregoing legislation, is vested with the 
additional power to regulate and control the public func¬ 
tions of the railroads in their relations to each other. 

The jurisdiction of the commission has been further 
extended by what is commonly called the “Anti-Trust 
Law.” 19 The purpose of this act, as set forth in its 
title, is “to define a trust, monopoly, unlawful combination 
in restraint of trade, to provide civil and criminal penalties 
and punishment for violation thereof and damages there¬ 
by caused; to regulate such trusts and monopolies; to pro¬ 
mote free competition for all classes of business.” (S. L. 
1907-8, p. 750) Under this law every act, agreement, con¬ 
tract, or combination in form of trust or otherwise, or 
conspiracy in restraint of trade or commerce within the 
state, which is against public policy, is declared illegal. 20 
Under Section 18 of this act, whenever any business, 
because of its extent and circumstances, becomes a virtual 
monopoly by violation of the preceding section and is 
placed in such a position that its service and products are 

1!, R. L. 1910, Ch. 79, as amended by S. L. 1913, Ch. 114. 

20 R. L. 1910, Sec. S220. 



The Corporation Commission 


195 


a public necessity to the extent that the public is vitally 
affected by its rates and charges, such business becomes 
a public business and is subject to the jurisdiction of the 
corporation commission in respect to its rates, charges, 
and conditions of service. 21 The exact limitation of 
regulation by the corporation commission under the scope 
of this act is not well defined, although several cases have 
arisen for adjudication. The first question that arose 
was: Were the public utilities such as electric, water, and 
gas companies, excluded from Article IX, Section 18 of 
the constitution, included under the operation of the 
act? No doubt it was the intention of the legislature, 
as set forth in Sectio n 13 of the act, to make a distinc¬ 
tion between a natural and a virtual monopoly, and also 
between a business affected with a public interest because 
of its very nature, such as water, electric, and gas com¬ 
panies, and a business private in nature but which has 
become public in its operation because of circumstances. 

The legislature has differentiated public utilities where 
competition must necessarily be eliminated, from busi¬ 
nesses which admit of competition but in which, because 
of certain circumstances, combinations, or conspiracies, 
competition has been eliminated. Businesses within the 
latter class are those falling within the purview of the act. 
Such has been the ruling of the Oklahoma supreme court 
in a case on which it was held that gas companies were ex¬ 
cluded from the operation of the anti-trust laws 23 . 
What industries, then, come within the act? Upon several 
occasions the power of the commission to fix the price 
for ginning cotton has been before the supreme court 
for review. In each case the appeal was dismissed for 

ai R. L. 1910, Sec. 8235. 

“Shawnee Gas and Electric Co. v. Corporation Com., 35 Okla. 454, 
130 Pac. 127. 




196 


Government of Oklahoma 


lack of jurisdiction, on the grounds that Article IX, Sec. 
20, of the constitution, which granted jurisdiction to the 
supreme court of review an order of the corporation 
commission, did not include an appeal from an order of 
the commission under the anti-trust law. Hence the 
extent of the power of the commission under this act 
was not directly passed upon 23 . But finally, in the case of 
the Oklahoma Gin Company versus the State 24 , which was 
an appeal from an order of the commission imposing a 
penalty for the violation of its order, the jurisdiction of 
the commission under the anti-trust laws was directly as¬ 
sailed as invalid upon the grounds that such power was 
an unwarranted delegation of legislative authority and 
was therefore a violation of Section 1, Article IV, 
of the constitution, providing for the separation of gov¬ 
ernmental powers. The court held, however, that such 
power was properly delegated, arguing that the powet 
of the commission to declare a private business to be 
monopolistic in character and subject to regulation, is a 
delegation of legislative authority; but inasmuch as such 
power is delegated to the commission by other parts of 
the constitution, such additional delegation by the legis¬ 
lature under the anti-trust laws is not a violation of the 
separation of powers. 

In 1913 the commission entered an order declaring the 
Oklahoma Operating Company a monopoly and its busi* 
ness of laundering a public one, and forbade an increase 
in laundry rates above those in effect at the time, with¬ 
out the permission of the corporation commission. In 
1918, the rates of 1913 being non-compensatory, the 
operating company increased its rates in violation of 
the commission’s order. In an action brought against 

23 Harris-Irby Cotton Co. v. State et al., 31 Okla. 603, 122 Pac. 163. 

24 63 Okla. 10, 158 Pac. 620 




The Corporation Commission 


197 


the Oklahoma Operating Company for violation of the 
order of the commission, an appeal was taken to the Su¬ 
preme Court of the United States. It was there held that 
Section 8235 of the Revised Laws of Oklahoma, 1910, 
which declares a business that “by reason of its nature, 
extent, or the existence of a virtual monopoly is such 
that the public must use the same,” to be affected with 
public interest, and which subjects such business to con¬ 
trol by the corporation commission, was invalid. Such 
invalidity was not due to lack of jurisdiction on the part 
of the commission or to the fact that the powers be¬ 
stowed upon the commission constituted a usurpation of 
legislative authority; but to the reason that no appeal 
from the order of the corporation commission was pro¬ 
vided for except in contempt proceedings for violation of 
its orders. Since the State Supreme Court has no power 
under this section to review an appeal from the order of 
the commission except by way of defense to contempt 
proceedings instituted for violation of the act, the order 
of the commission in fact amounted to a denial of due 
process of law. 25 This defect in the Anti-Trust Laws 
was, however, corrected by legislation which pro¬ 
vided that all appeals from the orders of the commission 
under Section 8235 should be governed by the rules ap¬ 
plicable to appeals in the case of transportation and 
transmission companies, as contained in Article IX, Sec¬ 
tion 20 of the Constitution of Oklahoma 26 . Thus the 
original power of the commission under the Anti-Trust 
Laws is unimpaired. 

In the opinion of the commission, the Anti-Trust Laws 
were designed for the protection of the consumer, and 

25 0kla. Operating Co. v. State, 252 U. S. 331; Okla. Gin Co. v. 
State 252 U. S. 339. 

*S. L. Okla. 1919, Ch. 52. 


198 


Government of Oklahoma 


not for the protection of the producer." 1 However,, 
it is important to note in this connection that in 
1913 the commission assumed under the Anti-Trust Laws 
jurisdiction over cotton gins, which obviously operate to 
the interest of the producer. In their annual report of 
1919, the commission urged the Legislature to extend 
their jurisdiction to include the regulat io n of-ice plants^ 
and threshing utilities, as complaints against these utili¬ 
ties were constantly being filed 28 . The legislature, 
however, refused to act, butiii the summer of 1921, the 
corporation commission assumed jurisdiction over ice 
plants and attempted to regulatiTfhe price of ice in vari¬ 
ous, cities under power conferred by S ectionJ 3235 of the 
Revised Laws of 1910; and their jurisdiction in this direc¬ 
tion is now before the Supreme Court. 

The commission having therefore exercised under the 
Anti-Trust Laws, jurisdiction over cotton gins, laundries, 
and ice plants, where will its jurisdiction stop? As 
pointed out, the exact limitation is not well defined, but 
any business that the state in its sovereign capacity may 
regulate may come within the jurisdiction of the commis¬ 
sion. Before the commission may exercise jurisdiction 
under the Anti-Trust Laws, however, a monopoly must 
in fact exist. If we can argue by analogy from the case 
of Federal Trade Commission v. Gratz, 29 in which it 
was held that “It is for the courts, not the Commission, 
ultimately to determine, as mother of law”, what the 
words “unfair method of competition” include, we may 
say that whether or not a business is a monopoly is ulti¬ 
mately determined by the courts. 

The powers of the corporation commission were 

27 121(h Annual Report, Oklahoma Corporation Commission, p. 1. 

28 1 bid, p. 1. 

“253 U. S. 421. 





The Corporation Commission 


199 


greatly extended by the laws of 1913, which gave the 
commission general supervision over what are common¬ 
ly called municpal utilities 30 . These utilities include 
all corporations operating directly or indirectly for 
public use. 

(a) For the conveyance of gas by pipe line, 

(b) For the production, transmission, delivery, or 
furnishing of heat or light with gas. 

(c) For the production, transportation, delivery, or 
furnishing of electric current for light, heat, or power. 

(d) For the transportation or delivery of water for 
domestic purposes or for power. 

There are excluded from the operation of the act all 
utilities municipally owned or operated. Over the utili¬ 
ties above mentioned, the power of the commission is 
complete; that body is vested with powers of rate fixing 
and of making regulations affecting their service, oper¬ 
ation, and management. To that end it is given full vis- 
itorial and inquisitorial powers, together with such inci¬ 
dental and implied powers as may be necessary to carry 
out the purpose of the act. The powers thus given apply 
to utilities within or without a city, even to those cities 
that have their own charters. 31 

Under the laws of the Territory of Oklahoma, the cities 
were granted the power through their city councils to 
make contracts in respect to the erection of gas and elec¬ 
tric plants, and they could grant to any person or corpor¬ 
ation the use of their streets and alleys for supplying 
such service. 32 However, no franchise thus granted 
could be exclusive or granted for a period longer than 
twenty-one years; and all such grants were subject to all 

30 S. L. Okla. 1913, Ch. 93. 

31 Biartlesville v. Corporation Commission, 199 P'ac. 396. 

3J Wilson’s Revised and Annotated Statutes of 1903, Sec. 398.. 



200 


Government of Oklahoma 


reasonable regulation by ordinance as to the use of streets 
and the price to be paid for the service rendered. The 
same privilege existed after statehood, 33 with the ex¬ 
ception that the franchise could be granted for twenty- 
five years, but no franchise could be granted, extended, 
or renewed without the approval uf a majority of the 
qualified electors voting at a special or a general elec¬ 
tion. 34 While the power of regulation is given to the 
commission, yet the granting of a franchise is in the 
hands of the city, there being reserved to the state “con¬ 
trol and regulation” of the use and enjoyment of the 
franchise. 35 The city, as a condition precedent to the 
granting of a franchise, may stipulate therein the 
maximum rate to be charged; but such rate is subject to 
the subsequent modification of the corporation commis¬ 
sion. The question of changing the terms of a franchise 
arose in the case of Pawhuska v. Pawhuska Oil and Gas 
Company. 36 By the terms of the franchise to the gas 
company in 1909, it was provided that “said grantee 
shall furnish natural gas to the cities at a reasonable 
rate, which shall in no case exceed fifteen cents per thou¬ 
sand cubic feet of gas.” Acting under the authority con¬ 
ferred by the laws of 1913, the corporation commission 
increased the rates from fifteen to twenty cents per thou¬ 
sand cubic feet. On appeal from the ruling of the cor¬ 
poration commission, the supreme court of Oklahoma 
held that rate-making was a sovereign function and that 
the state in its discretion could delegate such power to a 
city or withhold it entirely. Thus, whatever power of 

33 Art. XVIII, Sec. 7, Const, of Okla. 

34 Art. XVIII, Sec. 5b, Okla. Const. 

35 Art. XVIII. Sec. 7, Okla. Const. 

36 64 Okla. 214, 166 Pac. 1058; Same case affirmed, 250 U S 
394, 63 L. Ed. 1054. 



The Corporation Commission 


201 


regulation had been delegated to the city by Section 593, 
R. L. 1910, such power had been repealed by the laws of 
1913, conferring jurisdiction on the Commission. “The 
authority granted to the City of Pawhuska * * * * 

was the power delegated to it by the State, and said city 
only had such right until such time as the State saw fit 
to exercise its paramount authority * * *” 

The decision was reaffirmed in the case of the City of 
Durant et al v. Consumers' Light and Power Company 37 
and recently in the City of Bartlesville v. Corpora¬ 
tion Commission. 83 In the latter case the order of the 
commission violated a provision of the charter of the 
City of Bartlesville. By Art. XI, Sec. 6 of the home rule 
charter adopted by Bartlesville under Article XVIII, Sec. 
3 of a and b of the Oklahoma constitution, it was provid¬ 
ed that the city reserved unto itself the regulation of 
rates and services of gas, electric, street railways, and 
telephone companies operating within the city. By Sec. 
539, R. L. Okla. 1910, whenever a provision of a city char¬ 
ter concerning a municipal matter is in conflict with the 
laws of the State, the provision of the charter shall pre¬ 
vail. Notwithstanding the foregoing provision, the rate 
fixed by the commission was upheld, on the theory that 
rate-making was more than purely a municipal concern; 
it was a matter of supreme legislative interest and hence 
superior to the interest of the chartered city. This case 
touches a vital question in the matter of the regulation 
of public utilities within a city. 

The effect of these decisions is to leave the cities of 
Oklahoma in this position: while the cities have the power 
to grant franchises for the use of their streets and alleys 
for a period not exceeding twenty-five years, the regula- 


*T77 Pac. 361. 

*199 Pac. 396. 



202 


Government of Oklahoma 


tion of rates and services, which forms the integral part 
of a franchise, is left to the corporation commission. 
This is true even if the franchise was granted before 
statehood. 39 

There has been considerable opposition to the regula¬ 
tion by the corporation commission of public utilities 
which operate under municipal franchises. During the 
eighth session of the Oklahoma Legislature a bill was in¬ 
troduced which would have limited the powers of the 
commission over such utilities, but the bill failed of pas- 
age. As the question of control over municipal utilities 
is still a vital one, it may be worth while at this point to 
consider the arguments both for and against lodging such 
control in the corporation commission. 

Those who advocate bestowing upon the city the right 
to regulate, by franchise or otherwise, the rates and con¬ 
ditions of service of the public utilities operating within 
its borders, offer the following arguments in support of 
their position : 

(a) The city which grants the franchise can and 
should embody therein effective regulatory provisions. 

(b) As circumstances vary from city to city, the local 
officials who are in touch with the situation can regulate 
more efficiently than can a state commission. 

(c) Since the corporation commission acts as a court, 
hearing evidence on both sides and rendering its deci¬ 
sions according to such evidence, instead of as a defend¬ 
ing body concerned to secure the interests of the public, 
regulation by this commission is very expensive to the 
city. Public utility corporations provide large corps of 
experts to present their side of the case; and if the other 
side is to be presented with equal efficiency, much of the 

City of Sapulpa v. Oklahoma Natural Gas. Co.- 192 Pac. 224 



The Corporation Commission 


203 


city's money must be spent in securing other experts. 
Moreover, even if the city is able to spend the money, it 
may, not secure specialists equal to those employed by 
the corporation. 

(d) Municipal regulation of public utilities is a logi¬ 
cal application of the principle of home rule. 

(e) Instances may be cited to show that regulation 
of utilities by the city works better in practice than regu¬ 
lation by a state commission. 

These arguments are answered in the following manner 
by those who believe in state regulation of public utili¬ 
ties: 

(a) Franchise provisions are valueless unless they 
are enforced by a thoroughly informed body which is 
constantly at work. Few cities can afford to pay for 
this type of supervision and enforcement, so that for the 
most part regulation by franchise is ineffective. 

(b) City officials may know local conditions, but 
they cannot know all that is necessary to a just regu¬ 
lation of rates and service. Technical information as to 
methods and costs of operation, correct standards of val¬ 
uation, depreciation, fixed charges, etc., can be obtained 
only through a staff of competent engineers, accountants, 
auditors, and other specialists who are intimately ac¬ 
quainted with the operation of public utilities. 

(c) Although it is a costly matter for the city to pre¬ 
sent its case adequately before the corporation commis¬ 
sion, the cost of doing so is much less than that of main¬ 
taining an adequate regulatory body equipped with an 
expert staff. The cost to the city should be greatly less¬ 
ened by the establishing within the corporation commis¬ 
sion of a separate investigational division, with a staff 


204 


Government of Oklahoma 


competent in every way to determine the relevant facts 
in regard to any corporation. 

(d) The question of municipal home rule is not rele¬ 
vant to the problem of regulating a corporation whose 
operations extend beyond the borders of the city. 

(e) In spite of individual instances to the contrary, 
state regulation works better than municipal regulation, 
as a general rule, for reasons which have been indicated 
in the foregoing paragraphs. 

It seems that those who believe in state regulation 
have the better of the argument. Continual, consistent, 
intelligent supervision of corporations which carry on 
any part of their operations, or which secure their sup¬ 
plies outside the boundaries of the city; adequate in¬ 
formation, depending to a large degree upon the power to 
summon witnesses, examine books and records, and de¬ 
termine actual costs; proper legislation for the protection 
of those who hold stocks and bonds, are all essential 
parts of utility regulation; and all are either beyond the 
financial reach of the average city, or are matters over 
which the state rather than the city has jurisdiction. A 
state corporation commission with an adequate invest¬ 
gating staff, and a corps of lawyers to defend the public 
interests, as a division entirely separated from the divi¬ 
sions which make the final decisions and rules, should 
be a far more effective protection to the public against 
greedy corporations and to the corporations against un¬ 
intelligent and prejudiced control, than any tribunal 
which a city could establish. 

The legislature in 1915 declared cotton gins to be pub¬ 
lic utilities, and their business of ginning cotton a public 
one and subject to regulation as to rates, charges and con¬ 
ditions of service, by the corporation commission in the 


The Corporation Commission 


205 


same manner as the regulation of transportation and 
transmission companies. 40 The law further provided 
that no person shall operate a gin until a license for 
that purpose has first been secured from the corpor¬ 
ation commission. Such license is not a matter of right, 
but the commission may exercise its discretion as to the 
necessity of a gin in the community, and as to the relia¬ 
bility and qualifications of the applicants. But should 
a petition signed by fifty producers of cotton in the im¬ 
mediate vicinity be filed with the commission, that body 
must issue the license. Under the power here given, the 
commission is not confined merely to fixing rates charged 
for the ginning of cotton, but may regulate these facili¬ 
ties incident to the ginning of cotton, such as the rates 
to be charged for bagging and ties furnished by cotton 
gin operators in the ginning of cotton. 41 

A law of 1923 (S. L. ch. 113) gives the corporation 
commission jurisdiction over motor carriers doing an in¬ 
ter-city business or operating between fixed terminal 
points or over a regular route, and not operating ex¬ 
clusively within the limits of an incorporated city or 
town. The commission is given the power “to fix or 
approve the maximum, or maximum and minimum rates, 
fares, charges, classifications, and rules and regulations 
pertaining to each motor carrier; to prescribe a uniform 
system and classification of accounts * * * All control, 
power and authority over railroads and railroad com¬ 
panies now vested in the Corporation Commission is here¬ 
by specifically extended to include such motor carriers.” 

The public utilities having been placed under the jur¬ 
isdiction of the corporation commission, the regulatory 
powers of the commission are co-extensive with the po- 

,0 S. L. 19*15, Ch. 176. 

“Sims v. State, 196 Pac. 133. 



206 


Government of Oklahoma 


lice powers of the state. The commission may make all 
valid and lawful orders prescribing rates and conditions 
of service that the state originally could have made in 
the exercise of the police powers. 42 The orders of the 
commission are the same as laws passed by the leg¬ 
islature, and the utility is subject to the orders as if they 
had been made part of the contract. 

A statute requiring all the gas supply to be metered is 
a valid exercise of the police power as a means of con¬ 
serving our natural resources, and may be enforced, the 
terms of the franchise notwithstanding. 43 As a meth¬ 
od of regulation, the commission has power to dis¬ 
count gas bills for insufficient service, for the reason that 
the mere furnishing of gas is not the only service of a gas 
company, since efficient service includes adequate pres¬ 
sure at all times, and the failure to transport gas with 
sufficient pressure is a failure to render service. 44 

The most far-reaching power of the commission, and 
the one that most concerns the people of the state, is its 
rate-making function. The constitution provides that 
rates, charges, and regulations must be just and reason¬ 
able; and what constitutes a reasonable rate touches the 
crux of the whole utility question, as adequate service and 
rates are interdependent. What is a reasonable rate 
does not admit of exact definition. Because of the count¬ 
less elements that enter into rate-making, each case must 
be determined in the light of its own circumstances; and 
the courts have for good reasons declined to make a defi¬ 
nite and absolute finding of a reasonable rate. 

The commission, before undertaking to fix rates, must 

42 0kla. Natural Gas Oo. v. State et al, 78 Okla. 5, 188 Pac. 338 

"Pawhuska v. Pawhustoa Oil & Gas Co. 148 Pac. 118, 47 Okla. 342. 

"“Okla. Natural Gas Co. v. State, 78 Okla. 5; 188 Pac. 338; affirmed 
in IT. S. Courts, advanced Sheets U. S. S. C. Apr. 15, 1922, p. 331. 



The Corporation Commission 


207 


first ascertain the value of the plant and base the reason¬ 
able rate thereon . 46 This general rule, however, seems 
to be somewhat limited in case of temporary rates. 
If it appears that the rate fixed by the order of the com¬ 
mission is somewhat permanent and is established as a 
reasonable return upon the company’s investment, all 
things considered, then the value of the plant must first 
be determined. If on the other hand the present income 
of the public service corporation is insufficient to pay the 
operating expenses, the commission may, pending the de¬ 
termination of the value of the plant, establish a tempor¬ 
ary rate which need not be based on the value of the 
property . 46 The courts have generally sanctioned 
temporary rates to meet an emergency, or to determine 
by experiment or trial what rates would be just. If this 
power were denied, and the commission were forbidden 
to prescribe.rates until it had made a complete inventory 
and valuation, it could grant little relief at a moment 
when war and post-war re-adjustment had created un¬ 
stable conditions. In the case of the Muskogee Gas & 
Electric Company v. State, cited above, the state su¬ 
preme court held: 

“Neither is the method of making the rates by the Cor¬ 
poration Commission limited to any particular theory or 
method, nor is a valuation a necessary pre-requisite to 
prescribing rates.” This particular statement would 
seem to be limited to temporary rates, unless the court 
intends to reverse itself in the more recent case of 

45 0kla. City et al v. Corporation Commission 80 Okla. 194, 195> 
Pac. 498, 47 Okla. 842. 

4G Bartlesvil]e v. Corporation Commission, 199 Par. 896; Mus¬ 
kogee Gas & Electric Co. v. State, 81 Okla. 176, 186 Pae. 730 



208 Government of Oklahoma 

Oklahoma City et al v. Corporation Commission 47 where 
it held: 

“The first essential in fixing rates is to determine the 
value of the property and then determine whether the 
rate is reasonable * * * but it is always essential that 
the value of the property be determined.’ Again the 
court says, “If this is a rate, the Commission failed to find 
the value of the property, which is absolutely essential 
and necessary before the Commission can fix a rate.” 

Admitting that a reasonable rate must be based upon 
the fair value of the property of a public service corpora¬ 
tion at the time it is being used by the public, the funda¬ 
mental question still remains: what is the proper method 
of determining such valuation? Since the European war 
when equipment and plant construction maintenance 
have oftentimes doubled in value in comparison with pre¬ 
war prices, the method of proper valuation has been of 
prime importance. The public utilities appearing before 
the commission have urged that valuation be made on 
the basis of present-day reproduction costs. No case has 
arisen during this abnormal period in which the supreme 
court of Oklahoma has considered the method of valua¬ 
tion. The leading case in Oklahoma upon the question 
of valuation is the case of the Pioneer Telephone and Tel¬ 
egraph Company v. Westenhaver , 18 in which the court 
declares: 

“No inflexible method for the ascertainment of the 
value of the property used in the service has been fixed 
by legislative bodies dealing with rates, or by the courts 
in determining the validity of rates, and from the nature 
of the subject no inflexible method can be fixed. Some- 


47 80 Okla. 194, 105 Pac. 498. 
4& 29 Okla. 429, 118 Pac. 345. 



The Corporation Commission 


209 


times the present value is arrived at by ascertaining the 
original cost of construction and all betterments, and de¬ 
ducting therefrom for depreciation: but this method does 
not always prove to be fair and just. If there was ex¬ 
travagance and unnecessary waste in the construction, or, 
as is often the case, fictitious stocks and bonds issued, the 
proceeds of which did not go into the original construc¬ 
tion, such method would prove unfair to the public. On 
the other hand, where the market price of the physical 
units or of the labor entering into the construction of the 
plant has advanced since its construction, the original 
cost may be much lower than the present value., and for 
that reason be to the owner of the plant an unfair determ¬ 
ination of its present value. The method most frequently 
used is to ascertain what it will cost to reproduce the 
plant, or the cost of its replacement at the present time, 
and deduct therefrom for depreciation in the existing 
plant. Both methods may be used and considered in as¬ 
certaining the present value, and both are often resorted 
to, as was done in this case.” 

Under the authority of this case, the original cost of 
construction as well as the reproduction cost may be con¬ 
sidered in arriving at a fair valuation. Under normal 
conditions the reproduction cost would probably be a 
fair test; but to base the fair value of a plant upon a the¬ 
oretical cost of reproduction during a moment of high 
prices caused by abnormal conditions, would be as unfair 
to the public as the reproduction cost would be unfair to 
the investor during a period of abnormally low prices. 
In the Westenhaven case, going-concern value was con¬ 
sidered in the valuation of the plant, which was esti¬ 
mated at twenty per cent of the reproduction cost . 49 The 


b 29 Okla. 429 af p 448 



210 


Government of Oklahoma 


sum expended each year for current repairs is not counted 
in the depreciation of the plant as a whole, and a depre¬ 
ciation of seven per cent a year was allowed in the case 
of a telephone plant. 

Any rate fixed by the commission must be for services 
to the people directly. Under the constitution , 50 “rate” 
is defined as meaning the rate of charge for ser¬ 
vices rendered, and before the commission may order a 
rate, it must be for services rendered directly to the peo¬ 
ple by the company affected. If there is no direct obli¬ 
gation between the consumer and the utility, no jurisdic¬ 
tion is conferred. Thus an order imposing an extra 
charge upon the consumers of gas furnished by the Okla¬ 
homa Gas & Electric Company for the creation of a spe¬ 
cial fund for the benefit of the Oklahoma Natural Gas 
Co., a producing company with whom the people had no 
direct relationship, is invalid . 51 Likewise the com¬ 
mission has no jurisdiction over the rates charged by a 
mere producing company which furnishes gas to a com¬ 
pany which alone is responsible for selling it to the pub¬ 
lic . 52 The rate a public utility pays for its supplies 
even if they afterward are resold to the public cannot be 
interfered with by the corporation commission. 

Should the commission fix a rate so low as to be con¬ 
fiscatory, the public utility may secure an injunction to 
enjoin the enforcement of an unreasonable rate. The 
injunction proceedings may be brought in either the su¬ 
preme court of the state or the Federal Court, as an un¬ 
reasonably low rate is equivalent to taking property 
without due process of law, and hence is a violation of 
the Federal Constitution. In a number of recent cases 


5 Art. IX, Sec. 34, Const, of Ok la. 

l Okla. City v. Corporation Commission, 80 Okla. 194, 195 Pac. 498 
"Nowata County Gas Co. v. Henry Oil Co. 200 Fed. 742. 



The Corporation Commission 


211 


the Federal Court has enjoined the enforcement of the 
commission’s orders. 

The power of the commission to promulgate rates is a 
legislative power, and its exercise involves legislative dis¬ 
cretion and policy . 53 While the hearing for the de¬ 
termination of a reasonable rate upon petition by either 
the public or the utility is judicial in its nature, the com¬ 
mission is vested with administrative functions which en¬ 
able it, on its own initiative, to investigate and determine 
at any time rates and regulations. The commission is 
specifically required by the constitution and various 
legislative acts to keep itself fully informed as to the 
judicial condition, management and valuation of public 
utilities within the state . 54 

To that end the commission is vested with full visitor- 
ial and inquisitorial powers 55 as to the management, 
rates, valuation, plants, equipment, receipts, capitaliza¬ 
tion, books, and records of all public utilities. The 
commission may, whenever necessary, require state¬ 
ments to be made under oath as to the management, 
method, and procedure in doing business. In the exe¬ 
cution of its administrative functions, the commission 
is greatly handicapped by the lack of funds, which 
prohibits it from employing a sufficient or highly enough 
paid staff of experts properly to determine all the mat¬ 
ters relating to the operation of public utilities. No 
doubt much of the difficulty in rate-making under the 
existing abnormal conditions is due to the fact that 
the commission is not able to employ its own experts 

“Fort Smith & Western Ry. Oo. v. State, 25 Okla. 866, 108 
Pac. 407 

“Const, of Okla. Art. IX, Sec. 18; S. L. 1913, Ch. 93; Const 
•of Okla. Art. IX, Sec. 29 

65 S. L. Okla. 1913. Ch. 93. 



212 


Government op Oklahoma 


to determine the proper valuation of public utilities. 
If the commission is to fulfill properly the purpose 
of its creation and the duties imposed by the constitu¬ 
tion, it must be something more than a court to pass judi¬ 
cially upon the questions presented, and must be able to 
determine upon its own initiative and after its own inves¬ 
tigations, the condition of public utilities in the state. 

It was a rule of the common law, and is now recognized 
by constitutional and statutory provisions, that all per¬ 
sons, natural or corporate, engaged in a public business 
may not discriminate between consumers or patrons. 
Such discrimination is prohibited by the constitution of 
Oklahoma , 56 and the corporation commission is em¬ 
powered to make all necessary orders to prevent discrim¬ 
ination. Discrimination is generally conceded to be an 
arbitrarily different charge for service made with respect 
to patrons similarly situated. However, discrimination 
in rates based on a reasonable classification is not prohib¬ 
ited as being contrary to public policy. Discrimination 
based on location, amount of consumption, and other ma¬ 
terial difference is permitted. Thus, when the corpor¬ 
ation commission enforced a two-cent passenger rate, 
they permitted the Wichita Falls and North Western 
Railway and other lines to charge three cents per mile, 
either for the reason that the lines traversed sparsely 
settled country that greatly curtailed their income or be¬ 
cause other factors existed which made the two cent rate 
insufficiently remunerative. There is no discrimination 
against a citizen who pays a fixed rate for water, when 
the city furnishes water without charge to a charitable 
or an educational institution , 57 nor is there when the 


56 Art. IX. Sec. 45. Const, of Okla. 
57 Fretz v. City of Edmond, 168 Pac. 800. 



The Corporation Commission 


213 


public schools or manufacturing institutions are furnished 
gas at a lower rate than private consumers. 58 Com¬ 
petition between carriers at commercial centers has led 
to discrimination in favor of larger cities. The constitu¬ 
tion forbids transportation and transmission companies' 
charging more for a shorter than for a longer distance, 
the shorter being included in the longer. 59 The com¬ 
mission is, however, permitted to disregard the constitu¬ 
tional restriction and may authorize carriers to charge 
just and equitable rates to and from commercial and 
junctional centers to meet competitive rates of the car¬ 
rier whose mileage between those points is shortest. The 
commission under this provision permits discrimination 
between competitive points. 60 The corporation commis¬ 
sion report, 1909, 1910 provides; “No transportation or 
transmission company shall charge or receive any greater 
compensation, in the aggregate, for transporting the 
same class of passengers, property, or merchandise, or 
transmitting the same class of messages, over a shorter 
than a longer distance, on the same line in the same di¬ 
rection—the shorter distance being included in the 
longer; except where rates are named between compet¬ 
itive points to meet rates made via the line or lines 
of transportation companies whose distance is shorter 
between such points." In addition the commission may 
authorize or prescribe mileage tickets, commutation, 
excursion, and special rates. 61 

The constitution prohibits, however, any transporta¬ 
tion or transmission company from giving free tickets or 

“Guthrie Light, Fuel & Improvement Go. et al v. Board of 
Education of city of Guthrie et al, 166 Pac. 128 

“Art. IX, Sec. 30, Const, of Okla. 

“Corporation Commission Order No. 246, Sept. 24, 1909. 

61 Art. IX, Sec. 30, Const, of Okla. 


214 


Government of Oklahoma 


free transportation for use within the state, except to its 
employees, ministers of religion, those engaged in charit¬ 
able and eleemosynary institutions, and other persons 
listed in Article IX, Section 13 of the constitution. But 
the foregoing provision does not prevent a stipulation in 
a franchise granted by the* city to a street railway com¬ 
pany providing for free transportation to its policemen, 
firemen, and United States mail carriers and reduced 
transportation for school children. 62 Such discrim¬ 
ination as is based upon a reasonable classification is per¬ 
mitted by law and public policy. 

The commission is given certain powers by the consti¬ 
tution in the investigation of interstate rates. It is re¬ 
quired to investigate all through freight or passenger 
rates on railroads in the state. 63 When in its opin¬ 
ion they are excessive or are levied or laid in violation of 
the interstate commerce law, or the rules and regulations 
of the interstate commerce commission, the proper offi¬ 
cials of the railroads are notified of the facts and re¬ 
quested to reduce the rates or make proper corrections. 
In case the rates are not changed, or the proper correc¬ 
tions are not made, it becomes the duty of the commission 
to notify the interstate commerce commission and to 
make proper application to it for relief. The corpora¬ 
tion commission’s power in this respect, however, has 
been exercised only to the extent of accenting and giving 
publicity to rate classification promulgated bv the roads 
and modified or regulated by the interstate commerce 
commission, and to investigations to see that the rail¬ 
roads of the state respect the classifications approved by 
the interstate commerce comjnission. 

Recent federal laws and decisions, however, have 


62 20 Olvla. 1, 93 Pac. 48. 

68 Art. IX, Sec. 32, Const, of Okla. 



The Corporation Commission 


215 


made it of more concern to state commissions to see that 
their intrastate rates are in accord with interstate rates, 
rather than to demand interstate rates in harmony with 
their intrastate rates. It is possible for the interstate 
commerce commission, under the transportation act of 
1920 as interpreted in Wisconsin and New York cases 
63a virtually to lift railroad rate making out of the 
hands of the public utilities commission of a state and to 
establish a horizontal increase in all intrastate rates. It 
can only do this upon a showing that the continuance of 
the state-fixed rates would discriminate heavily against 
the railroad companies in their earnings from intrastate 
as compared with the interstate business. Similarly the 
interstate commerce commission can raise groups or 
classes of intrastate rates to relieve passengers or ship¬ 
pers from discrimination as compared with interstate 
passengers or shippers. 6 ^ 

The constitution of Oklahoma 64 not only gives the 
commission jurisdiction over rates and services, hut al¬ 
so charges it with the duty of “supervising, regulating 
and controlling’’ transportation and transmission com¬ 
panies in all matters relating to the performance of their 
public duties and to the correcting of abuses affecting the 
general public. How far under this provision may the 
corporation commission go? The answer seems to de¬ 
pend upon two factors, first, upon whether or not the reg¬ 
ulation of the commission is merely for general public 
safety, convenience or benefit, or whether it is for the 
safety, convenience and benefit of the patrons of the pub- 

63a R. R. Com. of Wis. y. C. B. & Q. R. R. Co., 66 L. Ed. ___ ; Adv. 
Op. April 1, 1922, p. 240. 

63 bHouston, E. & W. T. R. R. Co. v. TJ. S., 234 U. S. 342. 

e4 Art. IX. See. IS. Const, of Okla. 


216 


Government of Oklahoma 


lie utility; and, second, upon whether or not the legisla¬ 
ture has directly given the commission further powers. 

In some of the first cases involving the question of the 
right of the commission to regulate generally for safety 
and convenience, the court refused to take jurisdiction on 
the ground that the case arose on an appeal and the con¬ 
stitution provided no appeal from such actions of the 
commission. 65 

Later several cases arose involving the same question, 
not by way of appeal, but through a writ of prohibition. 
In these cases the court took jurisdiction and held that 
the corporation commission has no general constitutional 
authority to require the performance by utility com¬ 
panies of public duties which have no relation or bear¬ 
ing to the service which they are rendering. Utilities 
are under no obligation to the public in general, but 
only to that portion of the public who are patrons. The 
constitutional power of the commission, therefore, in 
regulating carriers for safety and convenience extends 
only to the making of regulations for the safety and 
convenience of those using the utility and not for the 
general public. Thus it was held that the corporation 
commission, having no express constitutional power to 
do so. could not require a common carrier to construct 
a crossing over its right of way, 66 and could not provide 
for a highway or crossing over a railway where one had 
not been lawfully established. 67 Probably because of 

05 A- T. & S. F. Ry. Co. v. State, 28 Okla. 797, 115 Pae. 872: 
St. L. & S. F. Ry. Co. v. State et al, 28 OMa. 802, 115 Pac. 874; awi 
Cooper et al v. 0. R. I. & P. Ry. Co. 31 Okla. 282; 121 Pac. 651 citing 
other cases. 

6e A. T. & S. F. Ry. Go. v. Corporation Commissino, 170 Pac. 
1156 

fl7 S. L. & S. F. Ry. Co. v. Love et al, 29 Okla. 523, 118 Pac. 


259 



The Corporation Commission 


217 


these decisions the legislature of 1919 68 expressly grant¬ 
ed jurisdiction to the commission over all public high¬ 
way crossings, where they cross steam or electric rail¬ 
roads or railways within the state, and also jurisdiction 
to prescribe the particular location of highway cross¬ 
ings, for steam or electric railways, the protection re¬ 
quired, and the removal of obstructions. Under this act 
the corporation commission was upheld by the courts 
in their order requiring a railway company to pave, 
drain and otherwise repair and maintain two under¬ 
ground crossings. 69 

Thus it seems that the corporation commission has 
no general constitutional jurisdiction to require of public 
utilities duties in respect to general safety and conven¬ 
ience, but that the legislature may grant it specific pow¬ 
er to regulate for general safety and convenience. 

Whatever regulations and facilities the commission 
prescribes must be reasonable and just; 70 and here as 
in the case of fixing a reasonable rate the courts have 
for well grounded reasons refused to lay down any exact 
standards, but determine each case in view of its own 
surroundings and conditions. Speaking in the case of 
the St. Louis & San Francisco Railroad Company vs. 
Reynolds, 71 the Court said, quoting from M. K. & T. 
Ry. Col. v. Town of Norfolk 72 : 

“The term, adequate facilities, is not capable of exact 
definition, being a relative term, and calls for such fac¬ 
ilities as may be fairly demanded, regard being had to 
the size of such station or place, the extent of the demand 

“S. L. 1919, Gh. 53. 

69 M. K. & T. Ry. Co. y. State, 200 Pac. 208. 

70 Art. IX, Sec. 18, Const, of Okla. 

71 26 Okla. 804, 110 Pac. 668. 

72 25 Okla. 325, 107 Pac. 172. 



218 


Government of Oklahoma 


of transportation, its relative location to other places, 
the cost of furnishing additional accommodations asked 
for, and all other facts which would have a bearing upon 
the question of convenience and cost.” 

In the case of Oklahoma Gas and Electric Co. v. State 
(Okla. App. Rep., Vol. XIX, p. 258) it was held that 
when a company has assumed under a franchise the duty 
of providing a gas distributing system, reasonably ade¬ 
quate to meet the wants of the community and to make 
extensions where the growth of the community might 
require, it should have made reasonable extensions upon 
demand, and having refused to do so may be required to 
do so by the corporation commission. 

The commission, under its power to “establish and 
maintain such public facilities and conveniences as may 
be reasonable and just,” may order anything incidental 
to the general, prompt, safe, and impartial performance 
of the duties to the public at’large imposed by the state 
in the proper exercise of its police powers upon transpor¬ 
tation and transmission companies. 73 Thus it may re¬ 
quire the installation of a telephone in a station, 74 be¬ 
cause such facility is a convenience to the public as pa¬ 
trons of the road. But here again there are certain 
limitations, for the facility ordered established must bear 
some direct relationship to the duty of a railroad as a 
common carrier. Thus, an order of the commission re¬ 
quiring a common carrier to maintain a telegraph line for 
purely commercial purposes was properly held invalid 
because in this instance the purpose of the telegraph sta¬ 
tion was independent of the railroad’s business as a com¬ 
mon carrier. 76 The duty imposed must be in the inter¬ 


ne. R. I. & P. Ry. Co. v. State, 23 Okla. Okla. 94, 99 Pac. 901. 
T4 A. T. & S. F. Ry. Co. v. State, 23 Okla. 210, 100 Pac. 11. 

7S A. T. & S. F. Ry. Co. v. State. 23 Okla. 231, 100 Pac. 16. 



The Corporation Commission 


219 


est of the traveling public in general. The common 
carrier, under Article IX, Sec. 18 of the constitution is 
under no obligation to furnish tank cars to a refinery, and 
an order compelling such facility is void for want of jur¬ 
isdiction. 76 Likewise the commission has no jurisdiction 
to require a railway company to build a switch for 
the benefit of any milling company, as such facility 
is one not directly coupled with a public necessity, and 
the public interest is not involved. 77 The commission 
has no power to order a railway company to construct 
a switch at its own expense, 78 but the commission may 
order the railway company to furnish the switch stand 
and the frog after the individual wishing the switch has 
constructed it or paid for its construction. 79 Neither 
is the railroad required at its own expense to provide fac¬ 
ilities to private individuals in order to equalize any dis¬ 
advantage caused by dissimilarity of location. 80 The fact 
that a railway company has permitted the erection 
of a private elevator on its right of way does not consti¬ 
tute discrimination, even when the company refuses to 
build a switch to another elevator. 81 

conservation of oil and gas 

A statute of 1915 82 prohibits the production of crude 
oil or petroleum in the state in such a manner and under 
such conditions as to constitute waste. The taking of 

70 S. L. & S. F. Ry. Co. v. State 76 Okla. 60, 184 Pax*. 442. 

7T C. R. I. & P. Ry. Co. v. State, 23 Okla. 94, .9(9' Pac. 901. 

78 S. L. & S. F. R. R. Co. v. State, 27 Okla. 424, 112 Pac. 980; 

S. L, & S. F. R. R. Co. y. State, 27 Okla. 426, 112 Pac. 1121; A. 

T. & S, F. Ry. Co. v. State, 24 Okla. 616, 104 Pac. 908. 

79 Art. IX, Sec. 33, Const, of Okla. 

8n A. T. & S. F. Ry. Co. v. State, 24 Okla. 616, 104 Pac. 908. 

81 23 Okla. 94. 

82 Cli. 25. 



220 


Government of Oklahoma 


crude oil or petroleum from any oil-bearing sand at a 
time when there is not a market demand therefor at the 
well at a price equivalent to the actual value of the crude 
oil or petroleum is prohibited. The law provides that 
“the actual value of such crude oil or petroleum at any 
time shall be the average value as near as may be ascer¬ 
tained in the United States at retail of the by-products 
of such crude oil or petroleum when refined less the cost 
and a reasonable profit in the business of transporting, 
refining and marketing the same” . . . . The corporation 
commission is given the authority and power to investi¬ 
gate and determine from time to time the actual value 
of such crude oil or petroleum. The commission therefore 
makes its orders, records them, and publishes them in a 
newspaper of general circulation. 

The law defines the term “waste” in some detail 83 and 
gives the commission authority to make rules and regula¬ 
tions for the prevention of such wastes, “and for the pro¬ 
tection of all fresh water strata, and oil and gas bearing 
strata, encountered in any well drilled for oil.” The law 
further regulates the production of oil by declaring: “That 
whenever the full production from any common sources of 
supply of crude oil or petroleum in the state can only be 
obtained under conditions constituting waste, as herein de¬ 
fined, then any person, firm or corporation having the right 
to drill into and produce oil from any such common source 
of supply, may take therefrom anyi such proportion of all 
crude oil and petroleum that may be produced therefrom, 
without waste, as the production of the well or wells of any 
such person, firm or corporation, bears to the total produc¬ 
tion of such common source of supply.” The commission 
is authorized to so regulate the taking of crude oil or pe- 

R3 Sec. 3. 



The Corporation Commission 


221 


troleum from any or all such common sources of supply, 
as will prevent the “inequitable or unfair taking from a 
common source of supply * * * and to prevent unreason¬ 
able discrimination in favor of any one such common source 
of supply as against another.” 84 For the purpose of de¬ 
termining such production a gauge of each well is taken 
under rules and regulations prescribed by the commission. 85 

Any individual, firm or corporation, or the attorney-gen¬ 
eral on behalf of the state, may institute proceedings before 
the commission or apply for a hearing before the commis¬ 
sion upon any question relating to the enforcement of the 
act, and the commission is given jurisdiction to hear and de¬ 
termine the same. 86 Appeals from these determinations lie 
to the supreme court. 87 Penalties in the nature of not over 
a $5,000 fine or thirty days imprisonment are provided for 
violation of the conservation law. 88 

By another act of the same year 88 the production of nat¬ 
ural gas so as to constitute waste is declared unlawful, and 
the term waste is carefully defined. The act provides that 
whenever natural gas, in commercial quantities, or a gas 
bearing stratum known to contain commercial quantities of 
gas, is encountered in any well drilled for oil or gas, the 
gas must be confined in its original stratum until such 
time as it can be produced and utilized without waste and 
such strata must be adequately protected from the infil¬ 
trating waters. Whenever the full production of gas from 
a common source of supply is in excess of the market de¬ 
mands, then any one having the right to drill into and pro¬ 
duce gas therefrom, may take only that proportion of the 

84 Sec. 4. 

85 Sec. 6. 

86 Ibid. 

87 Sec. 7. 

88 Sec. 8 

89 S. L. Okla. 1915, Ch. 397 



222 


Government of Oklahoma 


natural gas that may be marketed without waste, as the 
natural flow of the well or wells owned or controlled by 
such an one bears to the total natural flow of such common 
source of supply, having due regard to the acreage drained 
by each well. 1 " 5 The commission may, however, by proper 
order permit the taking of a greater amount whenever it 
deems such a taking to be reasonable or equitable.' 1 

A law of 1917 92 created an oil and gas department 
within the corporation commission, 93 and gave exclusive 
jurisdiction over oil and gas matters to the commission. 94 
This law gives the commission power to prescribe rules 
and regulations for the plugging of all abandoned oil and gas 
wells, 95 and provides that they must be plugged under 
the direction and supervision of the conservation agents 
of the commission. By this same law, 96 jurisdiction was 
conferred upon the commission to inspect all oils and 
liquid products of petroleum or other bituminous sub¬ 
stances or into which the product of petroleum enters. 
By a law of 1919 97 the oil and gas conservation agent of 
the commission is authorized to prescribe rules and regula¬ 
tions for the determination of the natural flow of the well 
and to so regulate the taking of natural gas “from any or 
all such common sources of supply” within the state, as to 
“prevent waste, protect the interests of the public, and 
of all those having a right to produce therefrom, and to 

t,0 See. 4. 

“Sec. 3. 

"Ch. 207. 

93 Sec. 1. 

fl4 Socv 2. 

i,5 Sec. 3. 

9fi Sec. 4. 

9 Th. 197. 



The Corporation Commission 


223 


prevent unreasonable discrimination in favor of any one 
such common source of supply as against another.” 

Section five of this act provides that every person, firm 
or corporation engaged in the business of purchasing 
and selling natural gas shall be a common purchaser 
thereof, and shall purchase all the natural gas which may 
be offered for sale, without discrimination as to producers, 
or source of supply, save as authorized by the commis¬ 
sion. If the purchasing concern is unable to purchase all 
the gas offered, then it shall purchase from each produc¬ 
er ratably. The commission has authority to make regu¬ 
lations for the “delivery, metering and equitable purchas¬ 
ing and taking of all such gas and shall have authority 
to relieve any such common purchaser, after due notice 
and hearing, from the duty of purchasing gas of an in¬ 
ferior quality or grade.” Hearings before the commission 
and appeals from its decisions are practically the same as 
under the law governing oil and petroleum above discussed 
and cited. 

The corporation commission was made ex-officio gaug¬ 
er of liquids used for illumination, heating or power pur¬ 
poses, 1 ' 8 and was authorized to appoint deputy oil inspectors. 
It was given the further power to regulate the tests for 
oils and to promulgate rules and it is made the duty of 
the inspectors to follow these rules. 09 

Domestic gas pipe corporations and municipal corpora¬ 
tions are permitted to contract with and purchase gas 
from, foreign or interstate pipe line companies upon the 
latter obtaining a license from the corporation commis¬ 
sion. The corporation commission may revoke this li¬ 
cense when in its discretion the public interests demand 

9S As to the legality of taking such functions away from the 
state mine inspector, see Love v. Boyle, 180 Pac. 705. 

"Secs, 2 and 5. 



224 


Government of Oklahoma 


il. 100 While no cases have arisen so far under this law, 
it probably would be declared unconstitutional as in¬ 
terfering with interstate commerce, following the prece¬ 
dent established in West v. Kansas Natural Gas Co., 221 
U. S. 229. 

A prerequisite to the carrying of gas is the filing in the 
office of the corporation commission of a ‘‘proper and ex¬ 
plicit acceptance” of the provisions of the law governing 
gas transmission and of the constitution of the state, and 
other information such as route, size of pipe line, capacity, 
location of pumping stations, gate valves, check valves 
and connections and appliances. 

It would be impossible to give within the space of this 
chapter all the regulatory orders the commission has is¬ 
sued since the date of its creation. But the commission 
is required by the constitution to make an annual report 
to the governor of its proceedings, and to recommend 
any additional legislation which it may deem exped¬ 
ient. 101 There are contained in such annual reports all 
the orders of the commission, which are still in effect, 
since the date of its creation. 102 As is pointed out else¬ 
where, the power of the commission under Article IX, 
Section 18 of the constitution, and by subsequent leg¬ 
islation, is very extensive. Reference has already been 
made to the power of the commission to establish rates. 
The constitution of Oklahoma, at the time of its adoption, 
imposed a two-cent per mile fare for passenger service 
within the state, but the commission was given the priv¬ 
ilege of changing the rate if the two cent fare proved 

100 S. L. 1013, Ch. 98, 

101 Art. IX, Sec. 25, Const, of Okla. 

lt2 Oopies of the annual reports of the commission may be secured 
without, charge from the office of the corporation commission. 



The Corporation Commission 


225 


non-compensatory. 103 On March 18, 1918, the two cent 
fare was enjoined by the Federal Court as confiscatory 
and void, and the commission has since increased both 
passenger and freight rates. The commission, in the 
exercise of its power to issue regulatory orders and 
require public service facilities, is controlled by what un¬ 
der all circumstances, is reasonable and just, and by the 
provision that the facility so ordered to be established 
relates to the public service corporation in the perform¬ 
ance of its public duty. Thus the commission may re¬ 
quire interstate trains to stop at stations where the com¬ 
panies have not furnished adequate facilities, 104 or may 
order the refund of money collected by a public utility 
in violation of its orders, 105 or if the public conven¬ 
ience demands, it may order the establishment of a 
depot. 106 Before any depot is permanently located, the 
plans and specifications must be approved by the com¬ 
mission 107 . The commission may specify materials used 
in construction depots. 108 The commission may, by Sec. 
1190, R. L. 1910, order the establishment of a union 
depot. The burden of proving an order of the commis¬ 
sion unreasonable rests with the party claiming the order 
to be unreasonable. 109 


103 Art. IX, Sec. 37, Const, of Okla. 

104 S. L. & S. F. Ry. Co. v. Town of Troy, 25 Okla. 749, 108 Pac. 
735; but see A. T. & S. F. Ry. Co. v. State, 175 Pac. 199, which holds 
that the commission may not require a through interstate train to be 
stopped at a community which already receives adequate service 
from other trains. 

105 Pioneer Telephone & Tel. Co. v. State, 40 Okla. 417, 138 Pac. 
1033. 

loe Midland Valley Ry. Co. v. State, 29 Okla. 777; 119 Pac. 413; 
S. L. & S. F. Ry. Co. v. Sutton, 29 Okla. 553, 119 Pac. 423. 

107 Order No. 19, Corp. Com. Rep. 1919, p. 6. 

108 S. L. & S. F. Ry. Co. v. Sutton, 29 Okla. 553, 119 Pac. 423. 
109 Art, IX, Sec. 22, Okla. Const. 



226 


Government of Oklahoma 


The orders of the corporation commission are neither 
final nor conclusive, and under our system of jurispru¬ 
dence, the rulings of any administrative or quasi-judicial 
body cannot be made final, but must always be subject to 
judicial review. The remedies against the validity of 
the order of the corporation commission are: 1. Ap¬ 
peal to the supreme court of the state. 2. Application 
directly to the commission to set aside the order. 3. Ac¬ 
tions in equity to restrain its enforcement. 110 An appeal 
from the rulings of the commission may be taken 
by the corporation whose rates, charges, classification of 
traffic, schedule, facilities, conveniences, or service are 
affected; by any person deeming himself aggrieved by 
such action; or by the state, if permitted by law. 111 
An appeal is one of right and may be taken only to 
the supreme court of the state, according to the laws 
governing appeals from the district court to the supreme 
court. 112 The district courts of the state have no jur¬ 
isdiction to prescribe and compel by injunction a sche¬ 
dule of rates named by the court, pending a hearing 
before the corporation commission, as such order is a 
legislative one. 113 An appeal must be made within six 
months from the date when the final order is made by 
the commission. 114 

The appellate jurisdiction of the supreme court does 
not extend to all orders of the commission, but is restrict¬ 
ed to the orders of the commission concerning matters 
set out in Art. IX, Sec. 20, of the constitution, prescribing 
rates, charges or classification of traffic, or affecting the 
train schedule, or requiring additional facilities, conven- 

110 40 Okla. 417, 13S Pac. 1033. 

311 Art. IX, Sec. 20, Okla. Const. 

112 Ibid. 

113 40 Okla. 583, 139 Pac. 694. 

114 S. L. 1910-11, Cliap. 18. 



The Corporation Commission 


227 


iences, or public service transportation and transmission 
lines. As a result Art. IX, Sec. 20, conferring appellate 
jurisdiction upon the supreme court is not as broad as 
Art. IX, Sec. 18, conferring power upon the corporation 
commission. 115 The commission may therefore issue regu¬ 
latory orders, which are not reviewable by the supreme 
court upon appeal; e. g. an order repealing a pre¬ 
vious order which imposed a penalty for failure to pur¬ 
chase tickets; 118 requiring all railroad and street car 
companies to report accidents to the commission; 117 or¬ 
dering reports as to valuation of property, 118 is within 
the power of the corporation commission under Art. 
IX, Sec. 19 of the constitution, but it is not subject to 
appeal to the supreme court under Art. IX, Sec. 20. The 
supreme court can only review cases affecting the rela¬ 
tion of the public to the transportation itself and can not 
act merely to correct abuses independent of the purpose 
of transportation. 119 While certain orders of the commis¬ 
sion are not subject to appeal, this does not mean that 
the power of the commission is unlimited. The power 
of the commission may always be tested by a writ of 
prohibition, which is the proper remedy when an infer¬ 
ior tribunal assumes to exercise judicial power not grant¬ 
ed by law or the constitution. 120 

When an appeal is taken from a ruling of the commis¬ 
sion, the chairman of the commission shall certify to the 
supreme court all the facts upon which the action ap¬ 
pealed from was based, together with such other evidence 


115 A. T. & S. F. Ry. Co. v. State, 28 Okla. 797, 115 Pac. 872. 
n6 A. T. & S. F. Ry. Co. et al. v State, 28 Okla. 12, 115 Pac. 1101. 
m St. L. & S. F. Ry. Co. v. State et al., 24 Okla. 805, 105 Pae. 

351. 

118 A. T. & S. F. Ry. Co. et al. v. State, 27 Okla. 329, 117 Pac. 328. 
U9 A. T. & S. F. Ry. Co. v. State, 28 Okla. 797, 115 Pac. 872. 

120 A. T. & S. F. Ry. Co. v. State, 29 Okla. 738, 119 Pac. 207. 



228 


Government of Oklahoma 


introduced before, .or considered by the commission as 
may be required to be certified by any party in interest 
or as the commission may deem proper. 121 The supreme 
court has jurisdiction to consider and determine the 
reasonableness and justness of the action of the com¬ 
mission appealed from, but the order of the commis¬ 
sion is regarded as prima facie, just, reasonable and 
correct. 122 In disposing of the case the supreme court 
may affirm, reverse or remand the ruling of the cor¬ 
poration commission. 

CRITICISMS AND RECOMMENDATIONS 

Criticism against the present regulation of public utili¬ 
ties has been based in the main upon two contentions: 

First, that the corporation commission has not ade¬ 
quately protected cities and those who dwell therein. 
Second, that the commission has tended to become a 
court, thus neglecting its functions as an investigational 
and prosecuting and public defending body. For the 
reasons before advanced, it seems evident that the regu¬ 
lation of utilities, even in cities, must remain a state func¬ 
tion. In respect to the second objection, it may be said 
that the legislature has not given the commission suffi¬ 
cient money, or provided salaries large enough to get 
first-rate men, to enable it to make such searching inves¬ 
tigations as to value, equipment and methods as should be 
made in order to regulate utilities properly. There is 
perhaps something anomalous in having the commis¬ 
sion act as an investigational body and public defending 
body, at the same time that they act almost as a court. 
That is, the commission, sitting as a judicial body, must 
rebut the evidence presented by the corporations with 


121 Art. IX, Sec. 22, Const, of Okla. 



The Corporation Commission 


229 


the evidence which the commissioners themselves have 
gathered. The chief objection of city officials and others 
to this procedure in the past has been that the commis¬ 
sion has not had the means of securing sufficient evidence 
to rebut the contentions of the utilities, and yet in passing 
upon the case has determined it upon the showing made 
by both sides. This situation could be remedied by di¬ 
viding the functions of the commission into two different 
bureaus or divisions. One should, act as an investigation¬ 
al, prosecuting, public defending body, while the other 
should act merely in a judicial capacity. There are many 
sound arguments, however, for permitting the ming¬ 
ling of functions as at present, the chief of these being 
that it makes for much greater flexibility and also pre¬ 
vents decisions from being made on a purely legalistic 
and formal basis. 


CHAPTER VII 


SUFFRAGE AND ELECTORS 

Article III of the Oklahoma constitution is devoted to 
suffrage and elections. The first section provides that 
electors of the state shall be “male citizens of the United 
States, male citizens of the State, and male persons of 
Indian descent native of the United States, who are over 
the age of twenty-one years, who have resided in the State 
one year, in the County six months, and in the election 
precinct thirty days, next preceding the election at which 
any such elector offers to vote * * *” It is stipulated in 
the same section that persons adjudged guilty of a felony 
after the adoption of the constitution, subject to such ex¬ 
ceptions as the legislature prescribes (unless citizenship 
shall have been restored in the manner provided by law), 
persons being kept in a poor house or other asylum at 
public expense, except Federal or Confederate ex-sol¬ 
diers, persons in a public prison, idiots and lunatics, shall 
not be entitled to vote. In the list of those entitled to 
vote must now be included women who meet the qualifi¬ 
cations laid down by the constitution. 1 Women who 
possessed “like qualifications of male electors” had 
the constitutional right, before the adoption of the suf¬ 
frage amendment, to vote at school district elections or 
meetings. 2 

From the above list of persons eligible to vote, are ex- 

Amendment to Art. Ill, Sec. 1, Constitution of Oklahoma, and 
Amendment XIX to Constitution of United States, approved Mar. 17 
1910. 

2 Const.. Art. Ill, Sec. 3. 


( 230 ) 



The Election System 


231 


eluded members of the regular army or navy of the 
United States who, although they have not been citizens 
of Oklahoma, are stationed here in the cause of duty; 
as according to the constitution they cannot gain residence 
in the state. 3 No person who is a citizen of Oklahoma loses 
his residence while absent from the state in the military or 
naval service of the United States. 4 

Section 4A of Article III, the so-called grandfather 
_clause > ._ providing that “No person shall be registered as 
an elector of this State, or be allowed to vote in any elec¬ 
tion held herein, unless he is able to read and write any 
section of the Constitution of the State of Oklahoma; but 
no person who was, on January 1st, 1866, or at any time 
prior thereto, entitled to vote under any form of Govern¬ 
ment, or who at that time resided in some foreign nation, 
and no lineal descendant of such person, shall be denied 
the right to register and vote because of his inability to 
so read and write sections of such constitution,’’ was de¬ 
clared invalid by the United States supreme court. 5 

A qualified and registered elector unavoidably absent 
from the county in which he is registered on the day of 
the general election may, with certain minor limitations, 
vote at any general election in any precinct in which he 
may happen to be, for all federal, state, district, or coun¬ 
ty officers. Upon presenting himself at any precinct to 
vote, he is required to make affidavit that he has not 
voted and that he will not vote in any other precinct with¬ 
in the state at this election. Such an elector must state 
the pre:inct and county in which he claims his residence, 
the reason for being absent from his own place of vot¬ 
ing, and his temporary stopping place in the precinct and 


3 Art. Ill, Sec. 2. 

Tbid. 

6 Guinn v. U. S. f 238 U. S. 347. 



232 


Government of Oklahoma 


county in which he is voting. He must also produce his 
registration certificate from the precinct in which he is 
registered. In case the names of district or county of¬ 
ficials on the ballot given him are different from those 
In his own county, he may write the names of the candi¬ 
dates of his own county in ink over the candidates’ names 
on the ballot. 6 The affidavit and ballot of such a voter 
are mailed to the secretary of the county election 
board of the county in which the elector lives. In case 
the county election board shall determine that this elec¬ 
tor was duly qualified, they shall count his ballot. 7 

Any qualified elector of the state who is in the active 
military service of the state or in the military or naval 
service of the United States may vote by mail. 8 

REGISTRATION. 

The constitution provides (Art. Ill, Sec. 6) : “In all 
elections by the people the vote shall be by ballot and the 
Legislature shall provide the kind of ticket or ballot to 
be used and make all such other regulations as may be 
necessary to detect and punish fraud, and preserve the 
purity of the ballot; and may, when necessary, provide 
by law for the registration of electors throughout the 
State or in any incorporated city or town thereof, and, 
when it is so provided, no person shall vote at any elec¬ 
tion unless he shall have registered according to law.” 
The legislature has acted according to these provisions 
in establishing compulsory registration. A system of 
county and precinct registrars is arranged 9 and the reg- 

6 Bunn Supp. 1918, 3122a, S. L. 1916, Ch. 25, Sec. 1. 

7 Bunn Supp. 3122b, S. L. 1916, Oh. 25, Sec. 2. 

8 Bunn Supp. Ch. 29, Art. IX, C. S. L. 1917, Ch. 157. 

9 Bunn Supp. 1918, Sec. 3177 b, c, S. L. 1916, Ch. 24, Secs. 2. 3. 



The Election System 


233 


istration of all voters in the state is required. By a 
session law of 1916 10 it was made the mandatory duty 
of every precinct registrar to issue registration certificates 
to every qualified elector who voted in the general elec¬ 
tion of November, 1914, without application from said 
elector. Failure on the part of any registrar to do this 
shall not prevent such elector from voting in any election. 
“Provided further, that each county election board in this 
state shall furnish to each precinct election board in the 
respective counties a list of the voters who voted at. the 
election in November, 1914, and such list shall be con¬ 
clusive evidence of the right of such person to vote.”” 
Other persons are required to register, at the time and 
under the conditions fixed by law. 

The registration certificate records the elector’s name, 
address, county, precinct, school district, occupation, age, 
race, color, height, weight, color of hair, color of eyes, 
and political affiliation; and a reference to two freehold¬ 
ers of the precinct as witnesses to his statements. The 
elector may be required to take an oath before the reg¬ 
istrar that his statements are true. 12 The original reg¬ 
istration certificate is given to the elector and the du¬ 
plicate is retained by the registrar, undetached from the 
certificate book. At the close of the registration period 
the registrar compiles the data from these duplicates into 
a precinct registration book, with all names arranged in 
alphabetical order according to surname; and the dupli¬ 
cates are then detached and turned over to the county 
registrar. The secretary of the county election board 

"Included in Bunn. Supp. 1918, Sec. 3177d, S. L. 1916, Ch. 24, 
Sec. 4, S. L. 1917 Ch. 159. 

u Ibid. 

12 Bunn. Supp. 1918, Seec. 3177 e, f, g. S. L. 1916, Ch. 24, Sec. 5, 

6. 7. 



234 


Government of Oklahoma 


makes up a similar book for the entire county “in alpha¬ 
betical order and by election precinct ;” 13 and files the 
book with the county clerk as a permanent public 
‘record. The duplicate certificates are kept by the sec¬ 
retary of the county election board. Certificates may 
be cancelled and new ones issued upon change of resi¬ 
dence or politics, but in the latter case application must 
be made at least ninety days before the next primary 
election. 14 This provision is an effective means of pre¬ 
venting “bolting” in the primaries from an inferior 
list of candidates in the elector’s party to some superior 
candidate in the other. 

At the election, the precinct register and the duplicate 
certificates are placed in the hands of the precinct in¬ 
spector; and the election board may demand the regis¬ 
tration certificate of any elector for comparison with du¬ 
plicate and register. If all the records agree, and if the 
elector shall satisfy the election board that he is the per¬ 
son described in the certificate, and that he is at the time 
he offers to vote a qualified elector of the precinct, he 
shall be entitled to vote; otherwise the election board 
shall endorse his registration certificate, the duplicate, 
and the precinct registration book, with the word “Re¬ 
fused” and the date. 15 In case any registered voter fails 
to vote, the inspector and judges of election note op¬ 
posite his name on the precinct registration book the 
words “Not voted”; and the date. Upon the failure of 
any elector to vote at three successive elections, his reg¬ 
istration is cancelled. It is hardly necessary to point out 
the ease with which this measure, designed to prevent “re¬ 
peating” and to do away with the evil practice of pack- 

13 S. L. 1916, Ch. 24, Sec. 7. 

“Ibid Sec. 8. 

“Ibid Sec. 12. 



The Election System 


235 


ing a doubtful district with “floating” voters, can be 
turned to sinister ends in the hand of the unscrupulous. 
In case a qualified voter appears “undesirable” to the 
election board, because of race or politics or for any 
other reason, it is easy to find some “discrepancy” be¬ 
tween certificate and duplicate, or some “irregularity” 
in the record in the precinct registration book, or some 
doubt in the minds of the board whether the person pre¬ 
senting the certificate is in fact the person named and 
decribed thereon. This is, naturally, no argument against 
the system, for a rogue-proof law seems as impossible to 
secure as a fool-proof one; but it is an argument in 
favor of careful selection of registrars and precinct elec¬ 
tion officials, upon whose conscientious performance of 
their duty so much depends. A fair election, safe¬ 
guarded by the registration laws, but opened freely 
co every qualified elector, which it is the purpose of the 
registration law to secure, can be held only when the 
election officers are men too honorable to misuse their 
authority. In case they value party above the American 
ideals and standards of democratic exercise of the suf¬ 
frage, this law can be perverted to work more harm than 
good. 

PRIMARY ELECTIONS 

Oklahoma is one of the numerous states in which party 
candidates for various offices are nominated by means 
of a primary election. The constitution of Oklahoma 
provides for a mandatory primary system, by Article III, 
Section 5, which reads, “The Legislature shall enact laws 
providing for a mandatory primary system, which shall 
provide for the nomination of all candidates in all elec¬ 
tions for State, district, county, and municipal officers, 
for all political parties, including United States senators: 
Provided, however, this provision shall not exclude the 


236 


Government op Oklahoma 


right of the people to place on the ballot by petition any 
non-partisan candidate/’ 

As we have seen in a preceding chapter, the constitu¬ 
tion of Oklahoma embodies much of the political philoso¬ 
phy current in the first decade of the twentieth century. 
An important tenet of this philosophy was faith in the 
direct primary as a means of doing away with the flag¬ 
rant abuses often practiced in nominating candidates at 
party conventions, and of placing nominations under pop¬ 
ular control, without destroying the party system. Pro¬ 
fessor Merriam 1 * attributes the direct primary move¬ 
ment in part to “desire for wider popular participation 
in government,” and in part to “general discontent re¬ 
garding social and industrial conditions,” leading to “a 
crusade for responsible party government.” The strength 
of this crusade is shown in the following remarkable 
statement: 

“In 1901 Florida, Oregon and Minnesota enacted im¬ 
portant direct primary laws; in 1902 Mississippi fol¬ 
lowed; and in 1903 the first statewide primary law with 
fairly complete provisions for legal supervision was en¬ 
acted by the state of Wisconsin. In 1904 a similar act 
was passed by Oregon and an optional law by Alabama. 
In 1905 Illinois, Michigan, Montana, South Dakota and 
Texas followed with more or less complete laws. In 1906 
Louisiana and Pennsylvania followed; in 1907 Iowa, Ne¬ 
braska, Missouri, North Dakota, South Dakota and 
Washington placed very complete laws upon their statute 
books; and in 1908 Illinois, Kansas, Oklahoma, and Ohio 
were added to the list.” 17 

It is not difficult, then, to understand why the consti- 

“Merriam, C. E., Primary Elections, 1009, p. 69. 

. 17 Merriam, Op. oit, p. 70. 



The Election System 


237 


tution of Oklahoma embodies a provision establishing a 
mandatory direct primary system; but it is a little surpris¬ 
ing, in view of the large amount of statutory law embod¬ 
ied in the constitution, that the legislature is given so free 
a hand in this matter. Possibly the framers of the con¬ 
stitution felt that the provisions that the primary system 
should be mandatory rather than optional, and that it 
should apply to “all candidates in all elections * * * for 
all political parties” covered the ground so fully that the 
legislature could do nothing except build upon this foun¬ 
dation. An examination of the law governing primary 
elections will show what sort of structure has been de¬ 
veloped by legislative action. 

ELECTION BOARDS 

Primary elections, as well as general elections, are con¬ 
ducted by state, county and precinct election boards. 
Such boards are established by legislative enactment, in 
pursuance of the duty laid upon the legislature by the 
constitution, which provides that: “The Legislature shall 
enact laws creating an election board (not more than a 
majority of whose members shall be selected from the 
same political party), and shall provide the time and 
manner of holding and conducting all elections.” 18 The 
provisions in regard to the personnel of these boards, 
and the methods of appointment, are significant and il¬ 
luminating. 

The state election board consists of three members, 
one of whom is the secretary of the state senate. 
He acts as secretary of the state election board. The 
other two members are appointed by the governor 
in the following manner: The state central com- 


'Constitution, Art. Ill, Sec. 4. 



238 


Government of Oklahoma 


mittee of each of the two political parties receiving 
the highest number of votes in the last general election 
for state officers presents to the governor a list of five 
names, and the governor may choose one person from 
each list to serve on the state election board. These ap¬ 
pointments are made “by and with the advice and con¬ 
sent of the senate.” By this method the political party 
which is in power in the state senate obtains majority 
representation on the state election board, and the op¬ 
posing party has no representative. Any third party or 
minority party or non-partisan groups can under no cir¬ 
cumstance obtain representation upon the state election 
board, as the law requires that the two appointees of 
the governor shall be “each from the two dominant 
political parties/” 1 " and also expressly provides that 
.even if one of the largest two parties fails or refuses 
to make nominations, the governor may appoint a mem¬ 
ber of such party upon the board. 20 

The compensation of the board is fixed by law; and it 
is provided that “The State Election Board shall maintain 
an office at the State Capitol continuously, with the sec¬ 
retary in charge.” 21 A new state election board is 
appointed every two years. 

The state election board selects one member of the 
county election board, who acts as secretary; and each 
of the two majority parties may select one member. In 
case a party fails to appoint a member of the county elec¬ 
tion board, the state election board may fill the vacancy, 
“after due notice by registered mail to the chairman of 
the county central committee of such political party.” Not 
more than two members of the county board may be- 

19 Bunn. Supp. 1918, Sec. 3182 d. S. L. 1913, Oh. 157, Sec. 4. 

*Tbid. 

^Bunn, Supp. 1918 Sec. 3182e. S. L. 1913, Oh. 157, Sec. 5. 



The Election System 


239 


long to the same political party, nor may more than one 
member be named from any one county commissioner’s 
district. In case a vacancy occurs in either state or coun¬ 
ty election board, the person appointed to serve for the 
unexpired term shall be of the same political party as his 
predecessor. 22 The state election board may remove at will, 
at any time, any member of the county election board, and 
the county board has the same authority in regard to the 
precinct board. 23 

The county election board selects a board of three 
members for each precinct in the county, to serve for 
four years. “Such precinct election board shall consti¬ 
tute the board of election officers, for their respective 
precincts, and shall have complete charge of all elections 
held in such precincts.” 24 No more than two mem¬ 
bers of the precinct board shall belong to the same poli¬ 
tical party, “unless it is impossible to secure a man quali¬ 
fied to attend to the duties of the office from the ranks 
of the other party.” 25 If the precinct central com¬ 
mittee of a political party “suggests its representation on 
a precinct board, the county election board shall be con¬ 
fined to such names, in choosing such party’s represen¬ 
tation.” 26 The county board designates the three mem¬ 
bers of the precinct board as, respectively, inspector 
of elections, judge and clerk. At the election, however, 
they may exchange positions by mutual consent, “in the 
interest of promptness in expediting business.” 27 Mem¬ 
bers of all election boards must take the oath of of¬ 
fice for their respective positions. 


22 Bunn, 1918, Sec. 3061; S. L. 1910-11, Ch. 106. Sec. 3. 
^Buirn, 1918, Sec. 3182g, S. L. 1913, Ch. 157, Sec. 7. 
24 Bunn. 1918, Sec. 3065; S. L. 1910, Oh. 106, Sec. 5. 

*R. L. 1010, Sec. 3066. 

*R. L. 1910, Sec. 3066. 

"R. L. 1910, Sec. 3072. 



240 


Government of Oklahoma 


By this series of provisions, the legislature of Oklaho¬ 
ma has insured the conduct of elections by members of 
the two “dominant parties”; and has neatly arranged 
that the party in power in the senate shall have and 
hold majority representation on every election board 
in every county and every precinct throughout the 
state. 


NOMINATING PETITIONS 

Any person desiring to become a candidate in a prima¬ 
ry election for a political party nomination shall petition 
the proper election board to have his name printed upon 
the political party ticket. The so-called petition must 
be signed by the candidate and must contain his place of 
residence, his post-office address, the name of the party 
>before which he desires to become a candidate, and the 
date of the election. All nominating petitions for presi¬ 
dential electors, United States Senators, representatives 
in Congress, state officers, members of the senate and 
house of representatives, district judges, and all other of¬ 
fices for which the electors of the entire state, ora subdi¬ 
vision greater than a county, are entitled to vote, must 
be filed with the secretary of the state election board. 
All nominating petitions for county and township offices 
or offices for which the electors of a subdivision of a 
county are entitled to vote, are filed with the secretary 
of the county election board. 28 Since the placing of 
names upon the ballot for a primary election is a 
mere ministerial duty which in no way involves judicial 
or discretionary power, a writ of prohibition keeping 
the board from so acting will not lie. 26 

’“R. L. 1910, See. 3032. 

’“’State ex rel-. Caldwell v. Vaughn et al. 33 Okla. 384, 12v5 Pac. 


899: 



The Election System 


241 


It seems, however, that a writ of mandamus would lie 
in case the board neglected, refused, or failed to do its 
duty. Thus, we find the courts saying: “It is plaintiff’s 
contention that he should be treated as the nominee and 
candidate of the Progressive party, because of the al¬ 
leged neglect of duty by the state election board to place 
his name upon the ticket for the primary election; but, 
assuming that the board was delinquent in this respect, 
still we think no such right follows to plaintiff, because 
it was his duty to see that such tickets were printed by 
instituting proceedings in the courts to compel the per¬ 
formance of duty 30 and we cannot say that, if plain¬ 
tiff's name had been printed on a ticket at the pri¬ 
mary, he would have received any votes." 31 

Nominating petitions which are to be filed with the 
secretary of the state election board must be filed not 
more than one hundred days nor less than fifty days be¬ 
fore the day fixed by law for the primary election. In a 
special primary election, called by proclamation of the 
governor, petitions may be filed not less than ten days in 
advance. Nominating petitions which must be filed with 
the secretary of the county election board shall be filed 
not more than ninety days nor less than thirty days before 
the day fixed by law for the primary election. 

The names of non-partisan candidates may not be 
printed upon the official ballot for the general election 
unless a nominating petition in conformity with the provi¬ 
sions of the primary election law shall have been filed 
for such candidates, with the proper election board and 
within the time prescribed for the filing of nominating 
petitions for the primary election. 32 The reason for this 

S0 Italics not in original. 

31 Bersons vs. Penn, et al, 33 Okla. 581, 127 Pac. 384. 

32 S. L. 1915, Ch. 152, amending R. L. 1910, Sec. 3033. 



242 


Government of Oklahoma 


requirement is not apparent at first; for as non-par¬ 
tisan candidates are not voted upon at the primary 
election it appears unreasonable that they should be re¬ 
quired to announce their candidacy so early. However, 
it appears upon investigation that the purpose of the law 
is to prevent any persons who have been candidates for 
party nomination in the primaries, and have failed to se¬ 
cure such nomination, from afterward declaring them¬ 
selves independent or non-partisan candidates and pre¬ 
senting their names as such at the general election. The 
danger that party votes may be diverted to such “bolt¬ 
ing” candidates may be very great in case they have large 
personal followings; and it is necessary to the preserva¬ 
tion of party unity and party control that this danger 
shall be prevented. 

TIME OF PRIMARIES 

Primaries are held on the first Tuesday in the month 
of August of each even-numbered year. At this general 
primary each political party must nominate its candidates 
for all elective offices in the state, district, county, town¬ 
ship and precinct. United States Senators are likewise 
nominated at this election. Nominations for any special 
election, held for the purpose of filling a vacancy in any 
office caused by death, resignation, or removal, may be 
made by a convention (“delegate convention”), if in the 
judgment of the state election board, the time is too 
short in which to hold a primary election, or the cost of 
holding it would be excessive or unnecessarily burden¬ 
some. 33 If special primary elections are held to fill 
vacancies in the legislature they are held on a day 

33 R. L. 1010, Sec.. 3025. In practice this applies chiefly to vacan¬ 
cies in the legislature as most vacancies are filled by appointment. 



The Election System 


243 


fixed by proclamation by the governor. The proclama¬ 
tion must be issued ten days before the primary elec¬ 
tion, if time permits; and nominations may be made by 
political parties, either in mass or delegate convention, 
or by petition of not less than one hundred qualified vot¬ 
ers. 34 


NOTICE OF PRIMARIES 

At least fifty days before the time of holding a regu¬ 
lar primary election, the secretary of the state election 
board transmits to the secretary of each county election 
board a notice in writing, designating the officers to be 
nominated at the primary. Within ten days after the re¬ 
ceipt of this notice, the secretary of the county election 
board mails written notices to the inspectors of elections 
in the various precincts. This notice contains the names 
of all the offices for which nominees are by law to be 
chosen at such precinct, and specifies the polling places, 
the date of the primary and the hours of the opening and 
closing of the polls. Within ten days after the precinct 
election inspector has received the notice from the sec¬ 
retary of the county election board, he must post in at 
least three conspicuous places in the precinct, a notice 
specifying the polling places and the date of the primary 
election, with the hours of its opening and closing, and 
the names of all county and township offices for which 
the several political parties shall nominate candidates. 35 

The voting places in each precinct or ward and the in¬ 
spectors, judges and clerks are designated and selected 
and advertised in the same manner as provided by law 
for general elections. 3 * Supplies for each ward and 


34 S. L. 1913, Ch. 96. 
35 R. L. 1910, Sec. 3034. 
“Ibid. 3026. 



244 


Government of Oklahoma' 


voting precinct are provided by the same officers 
and in the same way, and all expenses of the primaries 
are borne and paid for in the same manner as at the gen¬ 
eral elections. 37 

BALLOTS 

A law provides that, “The names of candidates of the 
several political parties shall be printed upon separate 
ballots and of different color. No party emblem or de¬ 
vice shall appear thereon, and no elector shall be per¬ 
mitted to vote for the nomination of candidates of more 
than one party in any primary election. The ballots for 
primary elections shall be printed by the county election 
boards as nearly in conformity with the provisions of the 
general election laws as may be.” 38 

The purpose of this section, evidently, is to provide a 
closed primary. One of its most important effects is to 
prevent the voter at a primary election from voting dif¬ 
ferent party ballots for congressional, state and county 
candidates. 39 The result of such a method is that no chance 
is given for a person to nominate local officials of a dif¬ 
ferent political complexion from that of the state offi¬ 
cials. Since the primary election is the real election in a 
community where the great majority of electors belong 
to one party, very often no candidate from a minor po¬ 
litical party will run in the primaries. Moreover, since 
a person practically loses his vote in local matters alto¬ 
gether unless he votes in the primary, this system forces 
electors to register as members of the predominant party, 
and therefore tends to keep such party in power. 

Sample ballots to the number of ten per cent of the 

37 Ibid, Sec. 3028. 

3S R. L. 1910, Sec. 3027. 

“Ex parte Lee F. Wilson, 7 Okla. Cr. 610. 125 Pec. 739. 


The Election System 


245 


regular ballots are printed for the use of each political 
party before or during the primary election. These 
sample ballots are a regular part of the election supplies, 
and are delivered to the various precincts as other sup¬ 
plies. They are exact duplicates of the regular ballots, 
but are printed on paper of a different color, and are 
marked “Sample Ballots.” The law requires that such 
ballots be posted in at least three conspicuous places 
near the entrance of the election enclosure. 40 

CONDUCT OF PRIMARIES 

In all respects, except where especial provision is 
made for exceptions in the primary law, the general 
election laws govern the conduct of primary elections. 41 

No special provision is made by the primary law for 
testing the qualifications of the elector as to his party af¬ 
filiations. The courts have held, however, that when an 
elector demands a party ballot, if the election inspector, 
judge or party watcher has reason to believe that the 
elector is non-partisan, or is not a member of the party 
whose ballot he is attempting to vote, it is the duty of 
the election officer to challenge his right to vote. Any 
challenger for any candidate may challenge the right 
of an elector to vote the ballot of the party making the 
challenge. If the challenge be on the ground that the 
elector is not in good faith a member of the party whose 
ballot he is attempting to vote, the inspector has the duty 
of challenging him as in respect to any other qualifica¬ 
tion, such as residence or age. 

An elector who resists the challenge and makes oath 41 
that he meets the proper qualifications as a partisan 

40 R. L. 1910, Sec. 3031. 

41 Ibid, Sec. 3035, 

42 See below for description of oath required. 


246 


Government of Oklahoma 


voter should bear in mind the following tests: Did 

he vote that party ticket at the last general election? 
Has he been affiliated with the party, does he stand by 
his party organization, does he submit to the party rules 
and usages, and accept and support the regular party nom¬ 
inations? 43 The second test laid down by the court here 
means little, since there are practically no party rules and 
usages. Moreover, since one is not legally bound to support 
in the election the party candidates for whom he voted in 
the primaries, and since the voting in the general elections 
is by secret ballot, there is no way of knowing whether or 
not one has accepted and supported the regular party nom¬ 
inations. It is said that many persons in the state of Okla- 
lahoma believe, and that certain unscrupulous political 
workers have encouraged the belief, that the law requires 
all who have voted in a primary election to vote the ticket 
of the same party in the general election. There is no way 
of checking up the accuracy of this rumor, but it is evident 
that such a belief, if widespread, forms an effective means 
of party control, at the same time that it defeats the pri¬ 
mary aim and object of the secret ballot in the general 
election. 

THE COUNTING OF THE PRIMARY VOTES 

Official counters are chosen for primary elections as 
at general elections. They prepare and sign a statement 
giving the names of the persons voted for, the office for 
which each sought nomination, and the number of votes 
received by each. This is certified to by the chairman 
of the precinct board and becomes a part of the official 
returns. The returns are made, as in the general elec¬ 
tion, to the county election board. In the case of all of- 

43 Ex parte Lee F. Wilson 7 Okla. 610, 125 Pac. 739. 



The Election System 


. 247 


fices whose electorate is only county-wide or less than 
county-wide, the county election board tabulates the vote 
from each precinct. The persons receiving the greatest 
number of votes for each nomination are declared the 
party candidates for the respective offices for which they 
were running; and the county election board gives them 
certificates of nomination. These certificates entitle 
such nominees to have their names placed upon the 
official ballot. 44 While there seems to be no statutory 
provision for tabulating the primary vote for offices 
whose constituency is greater than the county, except in 
the general law, as a matter of practice the precinct 
sends in its result to the county election board and this 
in turn sends its tabulation to the state election board, 
which certifies those for the respective offices who have 
received the greatest number of votes and so are entitled 
to have their names appear on the general election bal¬ 
lot. 45 

All contests arising out of primary elections are de¬ 
cided in the same manner as contests following general 
elections. 40 In addition to this provision, another 
section of the primary election law 47 gives to any 
candidate in a primary election the right to “challenge 
the correctness of the announced result thereof by filing 
with the county election board, whose duty it is to can¬ 
vass the returns in such race, a verified statement setting 
forth a state of facts which, if true, would change the 

44 R. L. 1910, Sec. 3037. 

45 R. L. 1910 Sec. 3035, provides that the ballots shall be counted 

and return made as in general elections. Sec. 3117 dealing with the 

returns under the general election law provides the procedure for 
making the returns in the case of elections of officers voted upon by 
districts larger than the county. 

“R. L. 1910, Sec. 3054. 

47 R. L. 1910, Sec. 3038. 



248. 


Government of Oklahoma 


result in his favor.” When such a statement is filed, 
“it shall be the duty of such board to inspect and count 
the ballots questioned by such candidate within ten days 
after he has filed his affidavit. Such board shall, upon 
the conclusion of such recount, proceed to certify the re¬ 
sult.” In construing this section, the courts have held 
that when a county election board certifies one set of 
primary election returns to the state election board, and 
the latter has canvassed said returns and issued a certi¬ 
ficate of nomination, it cannot be compelled to meet again 
and recanvass another set of returns subsequently certi¬ 
fied to it by the county board. “A defeated candidate 
who complains that the returns canvassed by the State 
Election Board were irregular and fraudulently made by 
the county board, has a remedy by an action in the na¬ 
ture of quo warranto against the holder of such nomina¬ 
tion to try the title thereto.” 48 

PRIMARY EXPENDITURES 

Each primary election candidate, for all offices for 
which the voters of more than a county have the right 
to vote, files with the secretary of the state election 
board the names of all individuals, with their post-of¬ 
fice addresses, “by, or through, whom he has expended, 
or proposes to expend money in defraying the expenses 
of his campaign.” The candidates for office within the 
borders of a county likewise file such names with the 
secretary of the county election board. In case a candi¬ 
date determines not to authorize any one to act for him 
financially, he notifies the election board that he has 
not authorized and will not authorize any one to act 


^Robert v. Marshall, 33 Okla. 716, 127 Pac. 703; from syllabus 
by court. 



The Election System 


249 


for him, but that he, in person, will account for the money 
or other things of value expended in the interests of his 
candidacy. This information must accompany every 
candidate’s formal application to have his name printed 
on the official primary ballot. Should any candidate 
fail to file such names or information with the proper elec¬ 
tion board, the name of said candidate shall not be certified, 
and the state election board must not place the name upon 
the official ballots. 49 

Within ten days after any primary election, every can¬ 
didate must prepare a carefully itemized statement, set¬ 
ting forth each item of expense in detail, “showing a 
full and complete record of his expenditures of money or 
other things of value, including promises to pay money 
or other things of value, as well as all treats, presents, or 
favors which cost money, or other thing of value, either 
present or future, which expenditures, treats, promises, 
presents, or rewards were intended for the purpose of 
aiding or advancing in any way the opportunities of such 
candidates, or which would have or be likely to have 
that result.” 50 The report of expenditures must be sub¬ 
scribed and sworn to by the candidate. 51 

A certificate of nomination will not be issued to a suc¬ 
cessful candidate who fails to file his record. A candi¬ 
date who was not successful and fails to file this report 
is guilty of a misdemeanor, and upon conviction is fined 
not less than $25.00 or more than $500.00. 52 Fail¬ 
ure of a nominee to file the names of persons authorized 
to make expenditures prevents him from having his name 


49 R. L. Okla. 1910, Sec. 3042. 
M R. L. 1910, Sec. 3043. 
B1 Ibid. 

52 Ibid, Sec. 8044. 



250 


Government of Oklahoma 


placed upon the official election ballot . 53 These re¬ 
ports remain on file in the hands of the secretary to 
whom they are given and are subject to public inspec¬ 
tion . 54 Campaign committees, either those acting 
for individuals or those managing the campaign for a 
political party, are obliged to file with the secretary of 
the state or county election board, as the case may be, a 
full and complete report of all moneys or other things 
of value which came into such committee’s hands or 
were expended by them . 55 

A schedule of permissible expenditures is embodied 
in the law, and any candidate expending more money 
than is set forth in the schedule is deemed to be guilty 
of a misdemeanor, and upon conviction may be fined not 


“Ibid. Sec. 3045. 

“Ibid. Sec. 3046, 

“Ibid. Sec. 3047. 

“R. L. 1910, Sec. 3050, “Limitation of Expenditures in Pri¬ 
mary.” Candidates before primary elections held under the provisions 
of this chapter shall be limited in the amount; of expenditures for said 
primary to the following respective amounts: 

Candidates for nomination for United States senator or 

governor, an amount not exceeding_ $3,000.00 

Candidates for nomination for any other office in which 
electors of entire state shall vote, an amount not ex¬ 


ceeding ___ 

Candidates for nomination for supreme court, justice or 
judge of the criminal court of appeals, an amount 

not exceeding ___ 

Candidates for nomination for congress, an amount not 

exceeding _ 

Candidates for nominatioD for district judge, an amount 

not exceeding _*_ 

Candidates for nomination for state senator, an amount 

not exceeding ___ 

Candidates for nomination for representative to the leg¬ 
islature where the district is larger than one county, 
an amount not exceeding _ 


1,500.00 

1,000.00 

800.00 

500.00 

250.00 


250.00 










The Election System 


251 


less than one hundred or more than two thousand dollars 
and shall be confined in the county jail in the county 
in which he was convicted for not less than six months 
nor more than two years. 57 The provisions of the law 
in respect to the expenditure of money apply as well 
to independent candidates as to others. 58 A section of the 
constitution (Art. IX, Sec. 40) and lengthy sections of the 
election laws 59 are devoted to prohibiting corporations 
from making contributions to any campaign fund, and 
from endeavoring to control the votes of employees or 
others in any manner. 


THE PARTY 

In order to maintain party identity, at a primary elec¬ 
tion, there must be cast for each state, district, or county 
office or for the United States Senate or for Congress, 


Candidates for nomination for any office in which the 
electors of a single county vote, an amount not ex¬ 
ceeding __— 200.00 

Candidates for nomination for any office in which the 
electors of a single district or subdivision of the coun¬ 
ty vote, an amount not exceeding- 50.00 

Candidates for nomination for mayor in dities of 15,000 

or more population, an amount not exceeding —200.00 
Candidates for nomination for judge of the superior 

court, an amount not exceeding - 200.00 

Candidates for nomination for other offices of cities of 

like population, an amount not exceeding-150.00 

Candidates for nomination for mayor in cities of less 

(than 15,000 an amount not exceeding - 100.00 

Candidates for nomination for other offices in such ci¬ 
ties, an amount not exceeding - 50.00 


The above limits of expenditure are generally considered to be 
impracticably low. 

57 R. L. 1910, Sec. 3051. 

“Ibid. Sec. 3053. 

“Ibid. Sec. 3138. 









252 


Government of Oklahoma 


of the political party of which any person is a candidate 
for nomination, at least twenty-seven per cent of all the 
votes cast for the candidate of such political party for 
governor in the state, “or in such district or county at 
the next preceding general election at which the Gover¬ 
nor of the state was elected * * *” This law does not 
apply to candidates for township or school district of¬ 
fices, or candidates for office in cities of the first class, or 
in towns, or to candidates for presidential electors; and 
does not apply to any political party having had no 
party organization in the state at the general election 
next preceding said primary election. 60 

CRITICISM OF THE PRIMARY SYSTEM 

The primary election laws of Oklahoma are based 
upon the theory that the party system of nominating 
candidates and working to secure their election is the 
best method of popular government; and that, by and 
large, the two-party system is preferable to a division 
of allegiance among several parties. Therefore, the 
party which happens to be in power in the state senate 
is placed in control over all elections, down to the re¬ 
motest precinct; the party which leads the opposition 
receives minority representation upon election boards and 
among other election helpers, such as counters; while 
independent voters and members of smaller parties re¬ 
ceive no representation, except as they are permitted to have 
watchers at each precinct. 

The fact that the same ticket must be voted at the 
primary election for all officers means that one’s local 
vote must be influenced by one’s preferences for state 
officers. This keeps the party ranks in good order; but it 


60 Bunn. Supp. 1918, Sec. 3055 a; S. L. 1915 Ch. 169. 



The Election System 


253 


means, together with the other requirements of the primary 
election law, that no matter how corrupt the party leaders 
may become in any city, a fusion or reform municipal 
party to overthrow them and establish clean govern¬ 
ment is almost impossible. Even if a few persons could 
be found with courage and independence enough to 
change their registration certificates three months be¬ 
fore the primary election in order to establish a new po¬ 
litical party in the city, at the cost of losing their vote in 
the county, state and congressional primaries, the ma¬ 
jority of persons would not make this sacrifice, and 
would certainly vote with their party at the primaries. 
The psychological effect of this action is, of course, to 
incline them to vote with their party again at general 
elections. So, for good or ill, party regularity nearly al¬ 
ways prevails. 

In the case of Mitchell v. Carter, 31 Okla. 592, the 
question arose as to whether or not a provision of a city 
charter requiring a non-partisan ballot was in conflict 
with the general primary law of the state. “It was 
clear, said the court, that it was an obligation of the 
legislature to create a primary system for the nomination 
of candidates for office in all municipalities, including 
those operating under freeholder's charters, although no 
legislative obligation was provided by the constitution in 
respect to the election of municipal officers. For the 
purpose of providing a primary system, the people of a 
city, in framing and adopting a charter, could not be 
regarded as within the meaning of the term 'legisla¬ 
ture' as employed by the constitution. Otherwise it 
would result that the city could 'provide for the nomina¬ 
tion of all candidates in all elections for state, district, 
county and municipal officers'; and this would be to 
recognize the competence of a home rule city to 'leg- 


254 


Government of Oklahoma 


islate not only upon purely municipal matters, but also 
upon purely state matters/ In other words, although 
the regulation of municipal elections was strictly a local 
affair, yet because of an express declaration of the con¬ 
stitution the regulation of municipal nominations was 
taken out of the hands of home rule cities and vested in 
the state legislature. This ridiculous situation obviously 
resulted from the carelessness of the framers of the con¬ 
stitution/’ 61 

Experience has shown that, whatever may be said in favor 
of the closed primary as a method of nomination for state of¬ 
fices and seats in congress, its operation should exclude nom¬ 
inations for purely municipal offices, where partisan poli¬ 
tics can do nothing but harm; and possibly even for county 
offices. The only excuse for Democratic or Republican sher¬ 
iffs or mayors or city clerks or county superintendants of 
schools is party regularity; and this should not be permit¬ 
ted to interfere with the need of choosing the best candi¬ 
dates for local administrative offices, regardless of political 
affiliations. Unfortunately, as the court decision quoted 
in the preceding paragraph demonstrates, an amendment to 
the state constitution is needed before non-partisan munici¬ 
pal primary elections can be established in Oklahoma. 

Several home-rule cities, however, including Okmulgee, 
Muskogee, and Ponca City, have provided in their charters 
for non-partisan primary elections; and there are no recent 
cases contesting the validity of such provisions. 

Even in respect to nominations for state offices and 
seats in Congress, however, there is a very strong feeling 
among the most intelligent voters of the state that the 
primary system has not accomplished what its propo¬ 
nents believed it would. Experience has demonstrated 

61 McBiain, H. L., Municipal Homo Rule. pp. 584-585. 



The Election System 


255 


that it has some serious faults. These may be said to 
be: 

1. The right of anybody and everybody to file as a 
candidate makes for the disruption of the party by in¬ 
ternal quarrels. Many Democrats believe that one good 
reason for the defeat of the Democratic party in Okla¬ 
homa during the campaign of 1920 was the bitterness 
caused among the members of the party by the Gore and 
Ferris primary campaign. 

2. The primary system sometimes eliminates from 
the race the best candidate for nomination, since all 
other contestants will do their best to injure the chances 
of the strongest man. This means that primary cam¬ 
paigns become so bitter and so venomous that the best men 
will refuse to hie nominations, whereas they would run 
in a regular election if nominated by a convention. 

3. While, theoretically, the closed primary makes for 
party responsibility, practically there is no responsibility. 
Under the present primary system, it is only individual 
partisan voters who are responsible for a nomination, and 
not the party as a whole. A candidate may file on his 
own responsibility, with the backing of his friends, or he 
may be induced to file by the party “bosses,” who work 
to “deliver” as many votes as possible to him; but in 
neither case is he the recognized choice of his party. 
As a plurality of votes is. sufficient to nominate, it may 
frequently happen that the man chosen in the primary 
election to run as the candidate of his party in the gen¬ 
eral election has received only a small fraction of the 
votes actually cast. 

4. Again, a primary campaign takes an enormous 
amount of time, from the candidate himself, those who 
actively support him, and those who consider it their 


256 


Government of Oklahoma 


patriotic duty to listen to him. Not only this, but the 
expense of the primary campaign is very large, increas¬ 
ing, of course, with the size of the constituency. It is 
commonly understood, for instance, that no one can 
hope to run successfully for governor of Oklahoma or 
for United States Senator from this state without having 
financial backing in some way or other to the extent of 
at least one hundred thousand dollars. Dollar for dollar 
the money thus expended must be repaid either in the form 
of appointments to office, favors, or grafts. This means 
that even before a governor enters office he is either bank¬ 
rupt or else he is bound hand and foot by promises. The 
expense to the taxpayers of a double election is also very 
great, and it is a fair question whether the results justify it. 

That there is quite a strong feeling against the primary 
system in Oklahoma is shown by the fact that a commit¬ 
tee on the s f tate constitution, appointed by the state 
central committee of the democratic party, submitted 
at a meeting of the latter committee of July 27, 1921, a 
plan for a “statewide conference” of the Democratic 
party, which should select, in election years, the party 
candidates for office. According to this plan, confer¬ 
ences were to be called in each county for the purpose 
of endorsing candidates for local offices. Delegates to 
these conferences were to be elected by the Democratic 
voters of each precinct and the county conferences were, 
in turn, to elect delegates to a state-wide conference 
which should endorse party candidates for state and 
Congressional offices and should determine questions of 

02 This plan is closely related io the scheme set forth by Dr. 
Ralph S, Boots in his article, “A New Type of Direct. Primary,” Na¬ 
tional Municipal Review, Sept. 1919; and to the plan outlined for pur¬ 
poses of discussion by the Committee on Electoral Reform of the 
National Municipal League (of which Dr. Boots is secretary), in the 
National Municipal Review, Dec. 1921. 



The Election System 


257 


party policy . 62 Opposition to the plan was so strong 
that it could not be adopted at the meeting of 
the state committee. The sentiment for it had sufficient 
force, however, to make necessary the compromise of 
passing it on to county conventions for certification or 
disapproval, where it was finally killed. It seems cer¬ 
tain that the present primary system is not giving satis¬ 
faction. Two ways of reform are advocated; either to 
change the primary law in such a way as to correct the 
abuses that exist at the present time, or else to go back 
to a convention system under quite strict legal regula¬ 
tion. 

general elections 

General elections are held on the first Tuesday, suc¬ 
ceeding the first Monday of November in even num¬ 
bered years. The ballots include candidates for seats 
in Congress, and “successors to all state, district, county, 
township, municipal, or precinct offices, whose terms 
expire before the next succeeding general election.” At 
every alternate general election, also, electors of the 
President and the Vice-President of the United States are 
chosen. In case a vacancy has occurred in any office, 
and someone has been appointed to fill this office until 
the next general election, his successor is chosen at 
this time . 63 

The county election board is charged with the duty of 
securing a suitable room in which to hold the election, 
and of placing therein a railing to separate the election 
board from the remainder of the room, and from two 
to five booths “so arranged and constructed that all the 
members of the election board can see whether or not 


63 R. L. 1910, Sec. 3056. 



258 


Government of Oklahoma 


more than one. voter is in such booth at any one 'time .”* 4 
A fifty-foot passage must be arranged, made by a rail¬ 
ing, rope or wire on each side, leading to the polling 
place. 

The state election board contracts for all ballots for 
state offices and the county election board contracts for 
ballots for county and local offices. “Election boards 
shall have full authority, within their jurisdiction, to 
contract for all necessary supplies and ballots, and to 
certify all accounts incurred therefor. County boards 
shall certify the time and compensation due by law to 
members of election boards and official counters to the 
board of county commissioners of such county, who shall 
audit and allow said account * * * and issue warrants of 
the county to pay the same out of the county treas¬ 
ury .” 65 The secretary of the state election board certi¬ 
fies to the auditor of the state, and the auditor issues 
warrants which are paid “out of any moneys in the State 
Treasury not otherwise appropriated .” 66 

Careful and minute regulations are laid down by law 
in regard to election supplies. The form of ballot is 
prescribed, as is the arrangement of names on the ballot 
for a primary election. The requirement here is that 
the names shall be arranged differently on different sets 
of ballots, so that each one appears first, second, etc., 
an equal number of times with every other. Specifica¬ 
tions are given for the ballot box, and the law even pro¬ 
vides for the supplying of each precinct with needles and 
twine for threading ballots, sealing-wax, pens, pen 
stocks, pencils, and “one small bottle of ink .” 67 The 

64 R. L. 1910, Sec. 3098. 

65 Bunn Supp. 1918, Sec. 3097, S. L. 1910-11. Ch. 106, Sec. 10. 

“Ibid. 

67 R. L. 1910, Oh. 29, Art. III. 



The Election System 


259 


inspector of the precinct election board is required 
to examine the election paraphernalia on hand in his 
district, such as boxes, rope or wire, etc., and to report 
any shortage to the county election board “in due time 
preceding each election.” The county board secures the 
missing material and gives it to the precinct inspector 
when he receives the ballots and other supplies . 68 

CONDUCT OF ELECTIONS 

All elections are opened at eight o’clock in the fore¬ 
noon and closed at six in the afternoon, except in cities 
of the first class, where they open at six in the morning 
^and close at seven in the evening . 68 Before the polls 
open, the inspector of elections opens the ballot 
boxes and in view of all persons present turns them up¬ 
side down to show that they contain no ballots; after 
which demonstration he locks them and hands one key 
of each box to the judge and one to the clerk, unless 
these officials belong to the same political party; in 
which case he retains one set of keys and hands the other 
to an election officer of a different party . 70 

Electors are admitted to the enclosure where the elec¬ 
tion officials are stationed, in the order in which they 
present themselves; but at no time are more electors 
permitted to be within the enclosure than “one for each 
booth and one other .” 71 

As each voter enters, he announces to the election 
clerk his name, and in cities of the first class, his street 
number. The clerk writes this information upon the 

“Ibid. 

69 R. L. 1910, Sec. 3123. 

70 Ibid, Sec. 3124. 

71 R. L. 1910, Sec. 3125. 




260 


Government of Oklahoma 


stub of the ballot, and adds, if necessary, the words 
“challenged,” “sworn,” or “spoiled,” in spaces provided. 
“In all elections, any candidate shall have the right to 
have a challenger, if appointed by him in writing, sta¬ 
tioned outside the enclosure, but in view of the entrance, 
and of the election officers, and such challenger shall 
have the right to question any elector, and to challenge 
his right to vote if he so desires, and when an elector is 
so challenged he must subscribe to the oath provided 
for challenged voters, or else he shall not be allowed 
to vote .” 72 

If any election inspector or challenger should chal¬ 
lenge the right of any person to vote, he must make affi¬ 
davit in writing that he is a qualified and legal voter 
of the precinct, giving certain prescribed information 
and naming two persons who have personal knowledge 
that he has met residence requirements. The elector 
is then allowed to vote unless the election inspector or 
challenger makes affidavit in writing that he knows or is 
informed and believes that the person challenged is not 
a legal voter of the precinct. This shall disqualify the 
elector from voting, unless an elector of the precinct who 
has been a freeholder in the precinct for at least one 
year next preceding the election makes affidavit that he 
has personal knowledge that the person challenged is a 
legal voter of the precinct. 

The right to challenge electors, like the right to de¬ 
mand registration certificates, is capable of doing much 
good if properly exercised, but much harm if used for 
improper purposes. 

When a voter has received a ballot from the election 
clerk, he retires into a booth and stamps if with a stencil 
which he finds there bearing the figure X. At general 


72 R. L. 1910, See. 3128. 



The Election System 


261 


elections, a stamp in the circle under the device of any 
party is a “straight” vote for that party. In primary 
elections, of course, the stamp must be placed by the 
name of each individual for whom the elector desires to 
vote; and the same thing is true in general elections 
when it is not desired to vote a “straight” ticket. If a 
voter is physically unable to stamp his ballot, it may 
be stamped for him by two of the precinct election offi¬ 
cers, of different political parties, after the voter swears 
to his inability. No suggestion may be made by the 
election officials as to the elector’s choice of candidates; 
and all electors except the election officials must be kept 
at such a distance that they will not know for whom the 
infirm elector voted. A penalty is provided for the 
misdemeanor of any election official who deceives such 
an elector and causes him to vote otherwise than as he 
wishes . 73 An extraordinary feature of the election law is 
that it provides no method of helping an illiterate voter to 
stamp his ballot in general elections though illiteracy does 
not disqualify any person from voting. In fact, the adop¬ 
tion of the “grandfather clause,” which was declared 
unconstitutional by the federal courts, showed clearly that 
the people of the state do not desire to make illiteracy a 
disqualification, except in the case of the negro race. It 
is surprising, under these circumstances, that the law does 
not cover the contingency which may frequently arise, of 
an illiterate voter’s requesting help in marking his ballot. 
The claim is sometimes made that the failure to provide 
this help is deliberate, and that it constitutes a literacy test, 
which acts in effect to make the negro vote negligible. 


T3 R. L. 1910. Sec. 3120. In primary elections the judges may as¬ 
sist an illiterate voter to mark his ballot. R. L. 1910, Sec. 3039. 



262 Government of Oklahoma 

If any elector spoils or mutilates his ballot while mark¬ 
ing it, he returns it to the election officers and destroys 
it in their presence. The clerk writes in his book upon 
the stub of the destroyed ballot the word “Spoiled” and 
gives the voter another ballot, upon the stub of which 
he writes, “Duplicate of Number_”, giving the num¬ 

ber of the stub of the destroyed ballot. 

When the ballot is marked it is folded by the voter in 
such a way that the markings do not show, but the 
number corresponding to the stub number is exposed. 
Upon the return of the ballot to the election officials the 
number is detached from the ballot, and the ballot is 
deposited in the official ballot box. “No person shall, 
within the election enclosure, disclose to any officer or 
to any person how he voted, nor shall any elector ex¬ 
pose his ballot to anyone .” 74 Electioneering or con¬ 
gregating within fifty feet of the polls is forbidden. 

Special provisions are made for various contingencies, 
such as the refusal of a party candidate to run, or his 
death, or his withdrawal from any other cause. The 
party may select another candidate whose name shall 
be printed on the ballot used at the general election; or, 
if it is too late for this, “stickers” with the new candi¬ 
date's name may be attached to the ballot . 75 

Another contingency is the failure of the proper offi¬ 
cials to bring election supplies to the polls at the proper 
time. This is met by the provision that ballots may be 
prepared in writing and cast in a box to be prepared for 
the purpose; and such ballots shall be counted and con¬ 
sidered, provided, the interest of the elector is made 
apparent .” 76 


74 R. L. 1910, Sec. 3135. 
7 Tbid. Sec. 3116. 

7 Tbid. Sec. 3129. 


The Election System 


263 


The failure or inability of various election officials to 
serve is met by special provisions for securing substi¬ 
tutes. The compensation of all officials who are en¬ 
titled thereto is fixed by law. Section 3137 of the Re¬ 
vised Laws of 1910 provides that all employers shall 
give their employees time to vote on election day. 

COUNTING THE VOTE 

On the Friday preceding an election, the precinct elec¬ 
tion boards meet to appoint four official counters, “who 
shall be electors of the precinct, and who shall be good 
penmen, and rapid in figures. Such counters shall be 
equitably distributed from the various political parties, 
but in no event shall more than three of them be from 
any one party, unless it is impossible to find a capable 
man to represent the minority party.” 77 

These counters go to the polling place on election day 
and are sworn in the form of oath prescribed for precinct 
election boards. After they cast their ballots, they receive 
the ballots which have been cast up to this time. One of 
those calling takes out the ballots singly from the re¬ 
ceptacle, and announces first the name of each office 
voted for, and second the name of the candidate for 
whom the vote was cast. The other scrutinizes the bal¬ 
lot as the call is made and corrects any error immediate¬ 
ly. He receives the recorded ballot and threads it upon 
a twine string. The other two counters keep records 
upon official tally sheets, “each one recording upon a 
different sheet at the same time * * * The record of 
the vote shall be kept by the familiar method of a tally 
on every fifth vote.” 78 At primary elections, the bal¬ 
lots of each political party are filed upon a string d> 


'R. L. 1910, Sec. 3077. 
s Ibid. Sec. 3080. 



264 


Government of Oklahoma 


themselves and a separate tally steet is kept for each 
party. 79 

The official count of the election must be made within 
view of the election officers, but no information shall be 
given to said officers or to any other person as to the re¬ 
sult of the count. No person except official watchers 
may approach within thirty feet of the place where the 
count is being made, except those in the act of voting. 

The counters must not hold communication with any 
neirion after the count begins, until the polls close, ex¬ 
cept through the election inspector; and communication 
with the inspector shall not relate to the result of the 
count. 80 

As the callers announce a vote “the enumerators shall 
call the numbers aloud, keeping check on each other.” 
The final results, properly certified, signed, and sworn to, 
are to be announced by the posting of one of the five 
duplicate certificates which are made out to correspond 
to the certificates in the back of the ballot book. An¬ 
other duplicate certificate is retained by the inspector of 
elections, one is filed with the county clerk, and the other 
two, which constitute the returns, are sent to the county 
election board. 

Each candidate for nomination in a primary election 
may name a person to act as watcher at each or any pre¬ 
cinct and commission him in writing. Each political 
party may name, and commission in writing through its 
county or city committee, a watcher at each or any pre¬ 
cinct in any general election. The watchers are put 
under oath to observe the same rules prescribed for 
counters; and they are then allowed to watch the prog- 

f9 Ibid. Sec. 3081. 

S0 Ibid. Sec. 3082. 



The Election System 


265 


ress of the count, to note and record any objections to 
the count and to challenge the result thereof, and to in¬ 
sist upon an honest and fair count. 81 

The following rules are laid down for the counting of 
ballots: 

“Should a ballot be stamped in primary elections in 
the square before the names of two or more candidates 
for the same office, such ballots shall not be counted 
for any of said candidates, but shall be counted for all 
other candidates where it is apparent as to the person 
for whom the elector intended to vote. In general elec¬ 
tions, ballots stamped under the device of more than one 
party, shall not be counted; ballots in general elections, 
when stamped under the device of a political party and 
in the square in front of names of individual candidates 
of another party, shall be counted for the candidates of 
the party under the device of which a stamp is, except 
it shall be counted for the candidates of the other party 
for whom the elector stamped in the square opposite 
their names. Ballots bearing any mark as a distinguish¬ 
ing mark shall not be counted. Any ballot, marked or 
stamped as above described, may be challenged by any 
official counter, and when a ballot is so challenged, the 
counter who questions the regularity of the ballot shall 
endorse upon the back of such ballot, with pen and ink, 
in a brief way, the reason why he challenged such bal¬ 
lot, and shall sign such statement. If such ballot be 
only challenged as to a portion of the names voted for, 
said statement shall so mention, giving the names as to 
which it is challenged and such ballot shall be counted 


'Bunn, 1918, Sec. 3084. 




266 Government of Oklahoma 

and recorded only for the names and candidates in re¬ 
gard to which it was not challenged.” s " 

When the official count is completed, the ballots are 
tied together with the twine on which they are strung, 
the ends of which are fastened in a hard knot. The 
knot is sealed with sealing wax and stamped with the 
election seal of the precinct, by the precinct board, 
in the presence of the counters. 83 Challenged bal¬ 
lots, and unstamped or mutilated ballots, are strung 
upon a separate thread after they have been endorsed 
as above described. They are tied and sealed as are 
the other ballots. 

Among the election supplies for each precinct are 
three large linen envelopes, one of which receives the 
voted ballots, the tally sheets, and the stub book of 
ballots; one of which receives the challenged and muti¬ 
lated ballots; and one of which receives the two dupli¬ 
cate copies of the certificate of results, which are the of¬ 
ficial returns of the election. Each envelope is plainly 
marked to show what material should be placed in it. 
The gummed flaps of the envelopes are moistened and 
sealed; then each envelope is sealed with sealing-wax, 
which is stamped with the precinct election seal. These 
preparations are made by the official counters. 

Each envelope is then endorsed by the clerk and the 
judge of the election; and the inspector places the en¬ 
velopes in the ballot box, in the presence of the other 
members of the board and the counters, and locks the 
ballot box securely. The box shall remain undisturbed 
until delivered to the secretary of the county election 
board. 

S2 R. L. 1910. Sec. 3086. 

s Tbid. Sec. 3085. 


The Election System 


267 


The county board shall canvass the returns, which are 
then replaced in the envelope and put back into the bal¬ 
lot box. They shall not disturb the other contents of 
the box; but when they have replaced the envelope 
containing the returns, the ballot box is to be “locked and 
retained by the secretary of the county election board 
until opened by order of court or until it shall be neces¬ 
sary to open the same for use at the next election, at 
which time the ballots shall be destroyed, provided, that 
in no case shall the ballots be destroyed until ninety days 
after the election at which they were cast.” 84 

Despite the provision of the primary election law 85 that 
“all contests arising out of primary elections shall be set¬ 
tled and decided in the same manner as is now or may 
hereafter be by law provided for general elections, ex¬ 
cept as herein otherwise provided”, no specific remedy 
has been laid down in the general election law for the 
settlement of contests or disputes. As a matter of fact, 
such contests are decided by the courts according to 
regular procedure. Thus, it has been held: “Where 
the certificate of returns has not been executed by 
the officers of an election precinct, as prescribed 
by section 3084, Rev. Laws 1910, and where the 
ballots have not been kept by the precinct officers and 
preserved for delivery to the county election board in 
the manner prescribed by the statute, and such ballots 
have been so exposed as to afford an opportunity and a 
reasonable probability of their having been changed or 
tampered with, parol evidence of the judge of the elec¬ 
tion of such precinct as to the result of the election in 
that precinct, as shown by the tally sheets at the close 
of the count of ballots, and parol evidence of bystanders 

84 Bunn, 1018, Sec. 3088, S. B. 1910-11, Ch. 106, Sec. 8. 

8S R. L. 1910, Sec. 3054. 



268 


Government of Oklahoma 


as to the result declared by the election inspector, or 
shown by a statement made by him at the close of the 
count, is admissible. 

“* * * Where such parol evidence * * * conflicts 
with the result as shown by the ballots, which have been 
handled in such irregular manner by the precinct elec¬ 
tion officers as to afford a reasonable probability of 
their having been changed or tampered with, whether 
such ballots are the identical ballots as cast by the vot¬ 
ers, and what was the result of the election in said pre¬ 
cinct, are, under all the evidence, questions of fact for 
the jury or for a court sitting as a trier of the facts.” 88 

Lack of space prohibits the citing of the many other 
examples of the fact that ordinary judicial procedure is 
resorted to, in the absence of a specific remedy for elec¬ 
tion contests, embodied in the election laws. 

Article VII of the election laws 87 is devoted to de¬ 
fining offenses against the purity of elections or the 
proper conduct thereof, and to fixing penalties for such 
offenses. Throughout the election laws, however, num¬ 
erous provisions of the same nature appear. It is hard¬ 
ly necessary to discuss these provisions in detail in this 
work. 

Provision is made by law for the holding of special 
elections to fill vacancies in certain offices, to vote upon 
bond issues, etc. These are conducted by the election 
boards in the same manner as general elections. 

Elections on bond issues for schools are conducted by 
the school board or by any three persons chosen by the 

86 Syllabus by the court, in the case of Moss v. Hunt, 40 Ok. 20, 
135 Fac. 282. 

87 R. L. mo. 



The Election System 


269 


bystanders. Special provisions are laid down for such 
elections. 88 

MUNICIPAL ELECTIONS. 

A law of 1919 s9 provides that all cities of the first 
class shall hold general elections on the first Tuesday in 
April, A. D. 1919, and each two years thereafter, for the 
purpose of electing a mayor, a city marshall, a street 
commissioner, a city clerk, a city treasurer, and a treas¬ 
urer of the city school board. The foregoing officers 
are to be elected from the city at large; and in addition, 
a councilman is to be elected from each ward. These 
officers serve for two years, and until their successors 
are elected and qualified. Charter cities are exempted 
from these provisions. 

An earlier law 80 provides that cities which have 
adopted a charter form of government, “and in such 
charter have provided or shall hereafter provide for the 
election of different officers *** or *** a different 
time or manner for the election of the elective officers,” 
may, notwithstanding the general law covering munici¬ 
pal elections, elect officers “at the time and for the term 
provided by such charter.” The conduct of elections is 
made subject to the provisions of the election laws rela¬ 
tive to other cities and towns, and is controlled by the 
state and county election boards. 

SUMMARY AND CONCLUSIONS. 

Our survey of the election laws of Oklahoma has re¬ 
vealed some meritorious features and some grave faults 
and deficiencies. The requirement that voters shall be 

88 R. L. 1910, Sec. 7837. 

"'Oh. 43, S. L. 1919. 

90 Bumi’s Supp. 1918, 437, S. L. 1910-11, Ch. 136. 



270 


Government of Oklahoma 


registered is in itself a valuable safeguard against 
fraud; even though, as we have seen, it may be misap¬ 
plied and used to prevent properly qualified persons 
from voting. An improvement upon the present method 
of requiring the registration certificate to be presented 
upon application for a ballot has been proposed by cer¬ 
tain students of governmental problems. They suggest 
that the voter should be required to sign his name in the 
registration book, and to sign again beside the previous 
signature, when he applies for a ballot. This simple re¬ 
quirement, if properly administered, would serve as an 
almost certain means of identification, as the business 
world knows from long experience with “travellers' 
checks” and similar documents. Of course such re¬ 
quirement presupposes the ability to read and write as 
a prerequisite to the exercise of the franchise. There is 
no literacy requirement in Oklahoma, and a constitution¬ 
al amendment would be necessary before such qualifica¬ 
tion could be imposed. 

It is an open question whether the right to challenge 
voters, as bestowed by the election laws of Oklahoma, 
does more harm than good. It can be used, and un¬ 
doubtedly it has been used, to prevent properly quali¬ 
fied persons from voting. In the National Municipal Re¬ 
view for December, 1921, the excellent suggestion is 
made that general challenges, by others than the elec¬ 
tion officers, shall be made at the time of registration 
rather than at the election itself. “The challenged per¬ 
son should be compelled to answer appropriate ques¬ 
tions under oath or affirmation and satisfy election offi¬ 
cers, who should verify answers of applicant. If appli¬ 
cant refuses to answer questions under oath or affirma¬ 
tion he should be arrested. If registration is denied ap- 


The Election System 


271 


plicant he will have the right of appeal to the courts.” 
The registration lists should be closed at least thirty days 
before the election, and published at once. “A reward 
of, say, $100.00, should be offered for the presentation 
of evidence leading to the conviction for false registra¬ 
tion of any person whose name appears on the list.” 

Under such a system, the possibility of occupying so 
many hours with challenges and affidavits that the polls 
are closed before the challenged person can vote—a 
practice not unknown in Oklahoma—would be absolute¬ 
ly removed; while, at the same time, all the safeguards 
of the present system would be preserved. Of course 
an unprincipled election officer could still refuse a bal¬ 
lot on the ground of some fancied irregularity in the reg¬ 
istration certificate, or of lack of correspondence be¬ 
tween signatures, if the signature method of identifica¬ 
tion were used; but even with this possibility remaining, 
the proposed change would do much to bring about the 
ideal set forth in the constitution of Oklahoma" 1 which 
declares: 

“The election shall be free and equal. No power, 
civil or military, shall ever interfere to prevent the free 
exercise of the right of suffrage.” 

As we have already seen, the primary election system 
of Oklahoma is not working satisfactorily. The first 
improvement needed is a constitutional amendment per¬ 
mitting cities and towns, and perhaps even townships 
and counties, to nominate local officers in a non-partisan 
primary. Various other improvements might well be 
made, in order to remedy the defects which were de¬ 
scribed earlier in the chapter. 

A great defect of the Oklahoma election laws is their 


‘Article III. Sec. 7. 



272 Government of Oklahoma 

lack of logical arrangement, consistency, and complete¬ 
ness. Many things are omitted which have to be 
guessed, or deduced from the context. At the same 
time, the laws are encumbered with a multitude of de¬ 
tails as to supplies, procedure, etc., which probably 
should be omitted altogether. Of course, regulations 
are necessary in order to prevent wasteful use of sup¬ 
plies and improper conduct of elections; but these should 
be laid down by the state election board as administra¬ 
tive rules. The election laws should be re-arranged, 
condensed, clarified, simplified, and made complete and 
consistent. Much of the material now included in 
them should be omitted, and many details now settled 
by the legislature should be regulated by the state elec¬ 
tion board. 


CHAPTER VIII 


THE INITIATIVE AND REFERENDUM 

CONSTITUTIONAL AND STATUTORY PROVISION 

The purpose of this chapter is not to enter upon an 
academic discussion of the merits or defects of the ini¬ 
tiative and referendum. From this standpoint the ini¬ 
tiative and referendum have been treated so thoroughly 
and at such great length that any further discussion 
would be a mere repetition. Political campaigns have 
been waged upon the basis of their efficacy. We shall 
therefore confine the present discussion to the operation 
and practical results of the initiative and referendum in 
Oklahoma. 

The initiative and referendum were incorporated in 
the constitution of Oklahoma, which was adopted in 
1907. From that day until this they have been a part 
of the organic law of the state. While Oklahoma's ex¬ 
perience in state government is brief in comparison 
with the decades during which most of our American 
governmental institutions have developed, yet in view of 
our rapidly changing political and social life, the exper¬ 
ience of a new state during a few years of operation of 
a new form of government may furnish many interest¬ 
ing revelations to guide the footsteps of a rapidly pro¬ 
gressing people. 

Oklahoma was not the first in this field of popular 
government, as her action was antedated by similar ac¬ 
tion in other states. The practice on the part of leg¬ 
islatures and constitutional conventions of submitting 
legislation and governmental policies to the people for 


273 


274 


Government of Oklahoma 


their approval or rejection is an old one; but only in re¬ 
cent years has it come to include every form of legisla¬ 
tion. Of the twenty-five states that framed their con¬ 
stitutions prior to 1801, in only three of the states were 
the constitutions submitted to the people.' But as time 
went on the practice of popular submission became 
a common one, until at the end of the nineteenth century 
only five states were governed b y constitutions not 
submitted to the referendum. 2 After the constitutional 
referendum had been firmly established as a constitu¬ 
tional practice, amendments to state constitutions were 
referred to popular vote, first by Connecticut in 1818. 
This led to a referendum upon statutory questions 
such as the location of the state capital, Texas being 
the first state to take such action in 1850. 3 To this 
was added popular vote upon the sites for public 
institutions, as state universities and eleemosynary 
institutions; and it was only a short time until the field 
of popular submission was extended to include statutes 
respecting limitations of state debts, taxation and fi¬ 
nance, and such questions as the regulation of intoxicat¬ 
ing liquors. 4 Then came the modern referendum, 
which includes every form of legislation. But the phase 
of the referendum which has been most strongly empha¬ 
sized, in recent years, is the power by which the people 
can by petition demand a submission of any legislative 


’Constitution of Massachusetts (1780) : Constitution of New 
Hampshire (1783). Pennsylvania held a referendum vote as to the 
calling of a constitutional convention. See W. B. Munro, Government 
of the United States, p. 411. 

Mississippi (1890), Kentucky (1891), South Carolina and Delaware 
(1895), Louisiana (1898). See E. P. Oberholtzer, The Initiative, Re¬ 
ferendum and Recall in America, pp. 120-127. 

Tbid, p. 176. 

Tbid. pp. 182 ff. 



The Initiative and Referendum 


275 


measure for their approval or rejection. It is this phase 
of the referendum that we shall consider. 

By the initiative is meant the power reserved to the 
people to propose and enact statutes and constitutional 
amendments independently of the legislature. This prac¬ 
tice, which is of Swiss origin, made its appearance in 
America in the closing years of the nineteenth century 
and first decade of the twentieth century. Its expansion 
was slow and restricted entirely to western states. South 
Dakota was the first state to adopt it, incorporating 
it in her constitution of 1898. 5 Utah followed in 
1900, Oregon in 1902, with wider application, Nevada 
in 1904, Montana in 1906 with certain restrictions, and 
Missouri in 1908. 6 By this time the states which 
had adopted the initiative had passed through several 
interesting experiences in its application. Several poli¬ 
tical parties became ardent supporters of this innova¬ 
tion in political science. So the stage was all set when 
Oklahoma in the fall of 1907 made its entrance into the 
sisterhood of states with a constitution providing for 
what Mr. Bryce has called the extreme of modern ten¬ 
dencies in government. 7 Many of the provisions of 
the initiative and referendum in the Oklahoma constitu¬ 
tion are taken substantially from the Oregon constitution 
and have been given the same construction by the su¬ 
preme court of this state. 8 

Section one of article five of the Oklahoma constitu¬ 
tion, after stating that the legislative authority shall be 
vested in a legislature consisting of a senate and house 

5 Bacon, Direct Election, p. 20. 

®Oberholtzer, op. cit. pp. 391 ff. 

T James Bryce, The American Commonwealth, Vol. 1, p. 492. 

8 Ex parte Wagner, 21 Qkla. 33, 95 Pac. 435; Norris et al. v. Cross, 
25 Okla. 287. 



276 


Government of Oklahoma 


of representatives, reserves to the people the power to 
propose laws and amend the constitution and to enact 
or reject the same at the polls independently of the leg¬ 
islature, and also reserves to the people the power to ap¬ 
prove or reject at their own option any act of the legisla¬ 
ture. However, by section seven, article five, the legisla¬ 
ture is not deprived of the right to repeal any law, propose 
or pass any measure not contrary to the constitution of 
this state or the constitution of the United States. No soon¬ 
er had the constitution gone into effect than the validity 
of these provisions was attacked on the grounds that they 
were contrary to section four, article four, of the Fed¬ 
eral Constitution which guarantees to every state a re¬ 
publican form of government. It was decided by the 
supreme court of this state that the provisions were not 
in violation of the Federal Constitution, 9 relying sole¬ 
ly upon a prior decision of the Oregon supreme court by 
which it was contended that, while greater power had 
been given the people in initiating laws and demanding 
the referendum on others, the power of the legislature 
as a governing body still remained intact. 10 An ap¬ 
peal in a similar case was dismissed by the United 
States supreme court for want of jurisdiction upon the 
grounds that it was a political and not a judicial ques¬ 
tion. 11 

The first power reserved to the people, that of the 
initiative, enables eight per cent of the legal voters voting 
at the last general election, by signing a petition properly 
drawn, to propose any legislative measure, and fifteen 
per cent to propose any constitutional amendment. Such 

9 Ex parte Wagner, 21 Okla. 33, 95 Fac. 435. 

10 Kad-derly v. City of Portland, 44 Oregon 118, 74 Pacific 710. 

“Pacific States Telephone and Telegraph Go. y. Oregon, 223 
U. S. 118. 



The Initiative and Referendum 


277 


petition must contain a full and exact copy of the meas¬ 
ure proposed. 12 

No restrictions are imposed as to what measures may 
be proposed. Although the question has never been 
raised in Oklahoma it is generally conceded that a pro¬ 
posal which is merely legislative in its nature is sub¬ 
ject to constitutional restrictions 13 and cannot under 
the guise of a constitutional amendment be made to 
evade the constitution. 14 It is doubtful whether this 
doctrine would be held valid in Oklahoma, where the con¬ 
stitution is filled with provisions statutory in their nature. 
This means that there is no distinction in the constitution 
between what is fundamental and what is stat¬ 
utory. It is evidently not the fact that a law is funda¬ 
mental in nature that makes it constitutional in this state, 
but the method by which it is passed. If it is passed in 
the manner prescribed for the passing of constitutional 
measures it becomes a part of the constitution irrespective 
of its nature. 

The power of the people of the state under the initia¬ 
tive is extended to the voters in any municipality, county 
or district therein, as to all local legislation or action, 
but the number of petitioners must be twice the num¬ 
ber required on state questions, except that in mu¬ 
nicipalities the petition shall contain the signatures of 
twenty-five per cent of the voters voting at the last mu¬ 
nicipal election. 15 The citizens of a municipality may ini¬ 
tiate a measure granting a franchise to a corporation and 
if such franchise es approved by a majority voting there- 

32 Art. V, Sec. 2, Constitution of Oklahoma. 

"State ex rel. Gibson et al v. Richardson 48 Oregon 309. See 
also 50 L. R. A. (N. S.) page 205 note. 

"State ex rel. Halliburton v. Roach 230 Mo. 408. 

"Const. Art. V, Sec. 5. 



278 


Government of Oklahoma 


on, a writ of mandamus will be issued compelling the 
city council to issue the same. 16 But a license per¬ 
mitting the operation of a private business can not be 
enacted under the initiative, upon the grounds that the 
issuance of a license is not a legislative but a judicial 
question. Whatever might have been the attitude of the 
court, the distinction is logical in theory, inasmuch as the 
granting of a license to conduct a private business does 
not affect the public, while the granting of a franchise to 
a public service corporation is of public concern. It is 
not the purpose of the initiative to furnish a redress for 
private wrongs. Should the charter of a city fail to 
provide for the exercise of the initiative and referendum, 
the mayor, city clerk and city attorney shall perform 
the duties corresponding to those of governor, secretary 
of state and attorney general, upon state questions. 

The validity of an initiated measure will not be passed 
upon by the courts until first acted upon by the peo¬ 
ple. 17 These decisions are based on the ground that un¬ 
til the people finally vote upon an act it is still in the 
process of being made. It is a general rule of law that 
under the doctrine of separation of powers the courts 
can not enjoin a legislative authority from passing acts 
no matter how unconstitutional they may appear to be. 
The court can only step in after the act has been com¬ 
pleted. 18 

Those who uphold the court in its attitude point out 


1(, City of Pawhuska v. Pawhuska Oil & Gas Co. 28 Okla. 563, 
115 Pac. 353. 

“Threadgill y. Cross, 26 Okla. 403, 109' Pac. 558. It has also 
been held that the constitutionality or validity of a proposed initia¬ 
tive measure cannot be challenged in a hearing before ithe secretary 
of state. (In re Initiative State Question, 26 Okla. 554, 110 Pac 647.) 

“This point of view finds adequate expression in State ex rel. 
Cranmer v. Thorson, 9 S. D. 149, 68 N. W. 202. 



The Initiative and Referendum 


279 


that discretion would have to be vested either with the 
secretary of state or the governor of declaring originally 
that the amendment was or was not in conflict with the 
constitution of the United States or of the state; thus giv¬ 
ing to an individual great power to decide what the peo¬ 
ple could or could not vote upon. Of course an appeal 
from this decision would be to the court. The opinion 
of the secretary of state or governor would have great 
weight, however, with the court. The court also be¬ 
cause of their peculiar economic or political beliefs might 
well declare a measure deemed inexpedient by them to 
be unconstitutional. 

It may be further argued that the people themselves 
may vote against the proposed measure on the ground 
of unconstitutionality as well as other grounds and that 
therefore the court will never have to decide the ques¬ 
tion. To lay upon the courts the duty of giving prelim¬ 
inary opinion might mean that the courts could be called 
upon to anticipate conditions which may never exist. 

Finally, in Oklahoma at least, the constitution pro¬ 
vides that the people reserve to themselves so much at 
least of legislative power as 19 is embraced in the right 
to initiate legislation on any subject. 

The argument against this view largely goes on the 
ground of expediency. On this ground it is argued that 
submitting a measure to the people which is manifestly 
unconstitutional involves unnecessary time and expense, 
since the people may ratify a measure only to have it de¬ 
clared unconstitutional by the courts later on. It is 
urged that there is no more reason to have a referendum 
vote upon a measure that later may be declared invalid 
than for the legislature to enact a law of questionable 


’Art. V. Sec. 1, Oklahoma Constitution. 



280 


Government of Oklahoma 


validity. In several states the enactment of invalid 
laws by the legislature is more or less prevented by the 
courts’ giving an informal opinion in advance upon a 
pending measure; why could not the same precautionary 
method be applied to the initiative and referendum, 
thereby saving unnecessary expense? 

Any measure referred to the people under the initia¬ 
tive shall be in force only when it shall have been ap¬ 
proved by a majority of the votes cast in such election— 
not by a majority of the electors voting upon such meas¬ 
ure, as in case of the referendum, but a majority of all 
votes cast for candidates. 20 This requirement of a 
majority of all votes rather than a majority voting there¬ 
on has had an important influence upon the success of 
many measures, as will be pointed out later. By this 
provision the silent vote has the effect of a negative vote. 
This provision has received the condemnation of the 
friends of popular government. 21 Submission of an 
initiated measure must be made at the next general 
election, but it is within the discretion of the governor 
to call a special election or to submit the measure at the 
mandatory primary. 22 If the measure is submitted 
at a special election, a bare majority in its favor will suf¬ 
fice; but if submitted at a general election, a majority 
of all votes cast is required. The success of many meas¬ 
ures has turned upon the kind of election, special or gen¬ 
eral. 

A measure enacted under the initiative is subject to 
expressed or implied modification or repeal by a subse- 

20 Art V, Sec. 3, Oklahoma Constitution. 

21 See Article by J. King, in Equity, 1911, p. 14. 

22 Sec. 2, Senate Bill No. 4. approved February 25, 1916. 


The Initiative and Referendum 


281 


auent legislature. 23 An act passed by the people 
by virtue of their “sovereign power” may be modified or 
repealed as the legislature wishes. Not only this, but 
the legislature may by voting an emergency on its revi¬ 
sion of the act or by declaring that a measure is neces¬ 
sary “for the preservation of the public peace, health 
and safety,” make their revision go into effect imme¬ 
diately and it is not subject to a referendum vote. The 
legislature is virtually left in a controlling position, there¬ 
fore, in respect to laws initiated by the people. The 
governor, however, may veto emergency measures, but 
they may be repassed by a three-fourths vote of each 
house. 24 . Furthermore, the governor's veto does not 
extend to measures submitted to the people. An ini¬ 
tiated measure generally becomes effective upon the 
proclamation of the governor declaring the results of 
such election; or the measure may contain the date of its 
becoming effective. The legislature can not set the 
date; and in case the date is determined in the measure, 
the legislature may not alter it. If a measure is rejected 
it can not again be proposed by the initiative within three 
years, unless by a petition signed by twenty-five per 
cent of the legal voters. 

The second power reserved to the people, that of the 
referendum, enables five per cent of the legal voters to 
demand the referring to them of any measure passed by 
the legislature except those necessary for the public 
peace, health and safety; or the legislature can upon 
its own motion submit any measure, providing such ref- 

23 State v. Schuler, 59 Oregon 18, 115 Pac. 1057. In re Senate 
Resolution No. 4, 54 Colo. 262, 130 Pac. 333, but In Stetson v. Seattle, 
74 Wash. 606, the city of Seattle was denied the right to alter an 
ordinance enacted by the people under the initiative. 

24 Art. V, Sec. 58, Oklahmoa Constitution. 



282 Government of Oklahoma 

erendum is ordered ninety days after the final adjourn¬ 
ment of the legislature. Any measure referred under 
the referendum is in force when approved by a 
majority of the votes cast thereon . 25 The provision 
granting the right of the referendum has been modi¬ 
fied by the construction placed thereon and the excep¬ 
tions contained in section fifty-eight, article five of the 
constitution. By that section it is provided that no act 
passed by the legislature shall take effect until ninety 
days after the adjournment of the session at which it was 
passed, except (a) enactments for carrying into effect 
the initiative and referendum, (b) general appropria¬ 
tion bills, (c) cases of emergency, to be expressed in the 
act, by a vote of two-thirds of the members elected in 
each house of the legislature. The laws for carrying in¬ 
to effect the initiative and referendum, general appro¬ 
priation bills, and any measures declared to be emergen¬ 
cy measures, go into effect immediately upon approval 
by the governor or when passed over his veto . 36 

Under a ruling of the supreme court of this state, the 
referendum can be invoked only upon those measures 
that have not become effective at the time of the filing 
of the petition; otherwise the section requiring a major¬ 
ity of the votes cast thereon to make it effective would 
be meaningless . 37 Thus all general appropriation 
bills, bills for carrying into effect the initiative and ref¬ 
erendum, and those declared to be emergency measures, 
are by the saving clause taken out of the ninety day 
period and become effective at once; and the referen¬ 
dum, not being available against measures already in 

“Art. V, See. 3, Oklahoma Constitution. 

“Norris v. Cross, 25 Okla. 287, 105 Pac. 1000. 

"Ibid. 



The Initiative and Referendum 


283 


operation, can not be invoked against those three classes 
of exceptions. However, the constitution establishes further 
limitations as to what may be contained in general 
appropriation bills. By section fifty-six, article five of 
the constitution, a general appropriation bill shall con¬ 
tain nothing but appropriations for the expenses of the 
executive, legislative and judicial departments, and in¬ 
terest on the public debt. The salary of no officer or 
employee of the state shall be increased nor any appro¬ 
priation made in a general appropriation bill for any 
officer or employee unless his employment and salary 
shall have already been provided for by law. Creating 
such an office and declaring its salary must be done by a 
special bill, and this bill unless declared to be an emer¬ 
gency by two-thirds of the legislature does not become a 
law until the expiration of the ninety-day period, and is 
therefore subject to a referendum petition. While a 
general appropriation bill is exempted from the refer¬ 
endum, no expenditures for the compensation of any of¬ 
ficer or employee in the executive, legislative or judicial 
departments of the state can be contained in such ap¬ 
propriation bill unless it shall have been provided for by 
a separate law ; 28 and such a law, unless declared to 
be an emergency, does not become effective until the end 
of the ninety-day period . 29 When the constitution 
of the state was adopted, the people ratified the offices 
provided therein, and provision for their compensation 
can therefore be included in a general appropriation 
bill . 30 

Section fifty-eight of article five of the constitution 
provides that the legislature can declare an emergency 

“Art. V, Sec. 56, Oklahoma Constitution. 

“Bryan v. Menefee, 21 Okla. 1, 95 Pac. 471. 

“Ibid. 



284 


Government of Oklahoma 


on such measures as are immediately necessary for the 
public health, peace or safety. Whether or not a meas¬ 
ure comes within the emergency clause is left wholly to 
the determination of the legislature, and should the leg¬ 
islature wrongfully or maliciously declare an emergency 
such declaration is, nevertheless, conclusive upon the 
courts ; 31 but the section further provides that an 
emergency shall not include: (a) the granting of a fran¬ 
chise or license to a corporation or individual to extend 
longer than one year, (b) provision for the sale of real 
estate, or (c) provision for the renting or encumbrancing 
of real property for a longer term than one year. When 
a proposed statute comes within this limitation the emer¬ 
gency clause cannot be enforced . 32 Thus a statute provid¬ 
ing that the paving should constitute a lien against the 
property for ten years, since it creates an encumbrance 
longer than one year, is exclusive of the emergency 
clause and not effective until the end of the ninety-day 
period . 33 Likewise an emergency can not be de¬ 
clared upon bonds authorized by the legislature for a 
period of ten years . 34 Wrongfully declaring an emer¬ 
gency does not invalidate the statute, but delays 
the day of its becoming effective until the end of the 
constitutional period . 35 A referendum petition can 
be invoked only against a legislative and not an admin¬ 
istrative act. For example, an order of the county com¬ 
missioners directing the county clerk to advertise for 

^Oklahoma City v. Shields, 22 Okla. 265, 100 Pac. 559; Brown v. 
State, 3 Okla. Cr. 475, 106 Pac. 975; Kadderly v. Portland, 44 Oregon 
118, 75 Pac. 222. 

32 In re Menefee, 22.Okla. 365, 97 Pac. 1014. 

33 0klahoma City v. Shields, 22 Okla. 265, 100 Pac. 559. 

34 Riley v. Carico et al., 27 Okla. 33, 110 Pac. 738. 

35 Ibid. 



The Initiative and Referendum 


285 


bids for the construction of a bridge is an administra¬ 
tive act and therefore not subject to a referendum peti¬ 
tion . 36 The mandatory elections called under special 
constitutional provisions for the issuance of bonds or the 
increase of indebtedness, are not subject to the laws gov¬ 
erning the referendum . 37 

The referendum may be demanded against one or 
more items of a legislative measure. A referendum 
against a part will not prevent the operation of the re¬ 
mainder . 38 The petition for the initiative or refer¬ 
endum shall be filed with the secretary of state and ad¬ 
dressed to the governor, who will submit the measure to 
the people without the interference of the state legisla¬ 
ture. 

The provisions of the constitution authorizing the ini¬ 
tiation and referendum are not self-enforcing ; 39 but 
the legislature is given power to make all necessary pro¬ 
visions for carrying into effect the initiative and refer¬ 
endum. Immediately after statehood the legislature es¬ 
tablished very definite procedure for the enactment of 
laws under the initiative and referendum, which was 
copied largely from the Oregon law, and provides as 
follows : 40 

The petitions for either the initiative or referendum 
must be attached to exact copies of the measure upon 
which the initiative or referendum is sought. The 

36 Brazell v. Zeigler, 26 Okla. 826, .110 Pac. 1052. 

37 N0Tth v. McMahan, 26 OMa. 502, 110 Pac. 1115; Board of 
Education of Ardmore v. Best, 26 Okla. 366, 109 Pac. 563. 

38 Art. V, Sec. 4, Oklahoma Constitution. 

39 Ex parte Wagner, 21 Okla. 33, 95 Pac. 435; In re Initiative 
■State Question No. 10, 26 Okla. 554, 110 Pac. 647. 

^Chap. 37, R. L. 1910. Approved April 16, 1908. A referendum 
petition filed after statehood, Nov. 16, 1907, but before Apr. 16, 1908, 
was not effective. Ex parte Wagner, 21 Okla. 33. 



286 


Government of Oklahoma 


sheets for securing the signatures must be of uniform 
size, with only twenty names to the sheet. Each copy 
of the measure, with the sheets, constitutes a pamphlet. 
On the outer page of each pamphlet is a warning de¬ 
claring it a felony for any one to sign other than his 
own name or to sign the same petition more than once. 
On the outer page of such pamphlet is an affidavit to be de¬ 
signed by the person circulating the same, to the effect 
that the signatures are genuine and that the addresses 
of the signers are correctly given. 

After a petition is prepared, but before it is circulated 
or signed, a copy of the same is filed with the secretary of 
state; and within sixty days thereafter the original pe¬ 
tition containing the list of signatures must be filed or 
the petition will not be considered. Upon the filing of 
such petition the secretary of state, in the presence of 
the governor and the person filing the petition, shall 
detach the sheets containing the signatures and bind 
them into one or more volumes. The duty of the sec¬ 
retary of state is ministerial; and a writ of mandamus will 
be issued in case of non-compliance . 41 The fact that 
in the secretary’s opinion the measure is unconsti¬ 
tutional is no justification for his refusal to file, nor will 
it constitute a defense in a hearing for a writ of manda¬ 
mus . 42 While the supreme court will grant a writ of man¬ 
damus it will not pass upon the validity of the measure, 
as we have already seen. The provisions of the statute 

"Norris et al. v. Cross, 25 Okla. 287, 105 Pac. 1000: Thread- 
gill y. Cross, 26 Okla. 403, 109 Pac. 558. 

“Tbid; but contra in State er rel. Little Rock v. Donaghey, 
106 Ark. 56, 152 S. W. 746 and State ex rel. Halliburton v. Roach, 230 
Mo. 408, 130 S. W. 689, where the secretary could exerdise his dis¬ 
cretion as ito the validity of the measure and such opinion consti¬ 
tuted a good defense in a hearing for mandamus. 



The Initiative and Referendum 


287 


imposing a duty upon the secretary are merely directory, 
and if he retains custody of the petition in his office, the 
petition is deemed to be filed although the exact terms 
of the statute have not been complied with . 43 When 
the original petition is filed, the time of its filing will 
be published; and within ten days after such publica¬ 
tion, any citizen by proper notification may protest 
against the measure’s being submitted, whereupon the 
secretary of state shall fix a day not less than five days 
thereafter to hear the arguments for and against the 
sufficiency of such petition. Notice of protest, when 
filed with the secretary of state, is ipso facto notice to all 
parties concerned . 44 The validity of a measure can 
not be questioned in the hearing before the secretary 
of state . 45 After proper hearing, the secretary of state 
shall decide as to the sufficiency of the petition, and 
his decision shall be subject to appeal within ten 
days to the supreme court, where it shall take prece¬ 
dence over all other cases. The decision of the secre¬ 
tary will not be overruled nor disturbed unless it can 
be affirmatively shown that the secretary abused his 
discretion . 46 If, however, in the opinion of the court 
the petition is insufficient, the parties have the right to 
amend within five days to meet the judgment of the 
court. An appeal from the decision of the secretary of 
state to the Supreme Court gives the court power to 
hear the case de novo . 47 The assumption is that any 

’"’Norris et al. v. Cross, 25 Okla. 287, 105 Pac. 1000. 

44 In re Initiative State Question No. 10, 26 Okla 554, 110 
Pac. 647. 

"Threa'dgill v. Cross, 26 Okla. 403, 100 Pac. 558. 

46 In re Inlitiative State Question No. 10, 26 Okla. 554, 110 
Pac. 647. 

4T In re Initiative Petition No. 23, State Question No. 38, 35 
Okla. 49, 127 Pac. 862. 



288 


Government of Oklahoma 


petition which is circulated and signed is genuine and 
the burden is upon the contestants to prove any irregu¬ 
larity. Unless this can be shown conclusively the peti¬ 
tion will stand . 48 

Any citizen may maintain an action for writ of man¬ 
damus to enforce the performance of a duty, and need 
show no other interest than that of citizenship ; 49 but to 
maintain an action for an injunction he must show spe¬ 
cial damage . 50 An election under the initiative and refer¬ 
endum can not be enjoined ; 51 but an injunction will be 
issued to prevent the carrying into effect of a measure 
voted upon without having been legally submitted . 52 

At the same time the petition is filed with the secre¬ 
tary of state an exact copy shall be filed with the attor¬ 
ney general, which shall contain a “ballot title” not 
to exceed one hundred words, containing a brief descrip¬ 
tion of the law proposed. If in the opinion of the at¬ 
torney general the law is in harmony with the title, a 
fact which he must determine within three days, he 
notifies the secretary of state, who in turn transmits to 
the secretary of the election board a copy of the pend¬ 
ing measure. If the attorney general does not approve 
the title he may form a new one. However, if any per¬ 
son is dissatisfied with the new title, he may appeal to 
the supreme court, which, upon hearing, may correct, 
or amend the title, accept the substitute, or draft a new 
one. When the petition has been accepted and the ti¬ 
tle decided upon, the secretary of state notifies the gov- 

48 Ibid. 

49 St?ate ex re]. Halliburton v. Roach, 230 Mo. 408 130 S W 607 
689. * ' 

"Libby v. Olcott, 66 Oregon 124, 134 Pac. 13. 

"Duggan v. City of Emporia, 84 Kan. 429, 114 Pac. 235. 

"Smith v. State ex rel. Hepburn, 28 Okla. 235, 113 Pac. 932. 



The Initiative and Referendum 


289 


ernor, who forthwith shall issue a proclamation setting 
forth the contents of the measure and the date of the 
election. 

The secretary of state is expected to publish in two 
newspapers of opposite political faith in each county, 
arguments for and against the measure, together with 
the names of the committee preparing the same. 

APPLICATION OF THE INITIATIVE AND REFERENDUM. 

Oklahoma’s first trial 53 of the initiative and referendum 
came at the general election in 1908. At this election 
there were submitted to the voters five propositions, 
consisting of three constitutional amendments proposed 
by the legislature, a law initiated by the people and a unique 
suggestion submitted by the legislature. The amend¬ 
ments authorized a liquor agency for the sale of in¬ 
toxicating liquors for certain purposes, the installation 
of the Torrens System of land titles now in use in Aus¬ 
tralia and several American cities, and the perma¬ 
nent location of the state capital prior to Jan. 1, 1913 
as provided in the Enabling Act. The initiated meas¬ 
ure authorized the sale of school lands to homesteaders. 
The unique suggestion provided for the establishment of 
a "New Jerusalem,” a model capital city to be solely con¬ 
trolled by the state, located somewhere near the geo¬ 
graphical center of the state with reference to the "to¬ 
pography of the country, drainage, health, picturesque 
grandeur, and supply of water,” and permitting no steam 
railroad to enter thereby "marring its beauty.” Of the 
five propositions, four were rejected. The agency bill 
and the law with reference to the sale of school lands were 

“All of the facts herein contained have been taken directly from 
the official records of the secretary of state of Oklahoma, and from 
the reports of the Election Board. 



290 


Government of Oklahoma 


defeated by an adverse majority; but the Torrens Land 
System and the location of the state capital, while re¬ 
ceiving a majority of votes, 30,506 and 48,419, respec¬ 
tively, fell short of a majority of all votes cast for can¬ 
didates. The unique plan took the popular fancy and 
received a good majority; but was of no legal effect, 
having been submitted for “advisory purposes only.”' 
There were 250,000 votes cast in the election; and the 
agency bill, being a liquor issue and always of great 
interest, attracted the attention of 90 per cent of the 
voters, while the other measures received from 79 to 
83 per cent of the votes cast, as indicated by the follow¬ 
ing table: 

ELECTION OF 1908. 


Name of Measure 

Liquor Agency Bill- 

Torrens Land System— 
Location of State Capitol 
'New Jerusalem Plan” 57 
Stale of Scohol Lands 58 


By Whom Majority Majority Pet. 

■Submitted Yes No Approv’g Against Voting 

Legislature 105,392 121,573 16,181 90 

Legislature 114,394 83,888 30,506 55 --- 79 

Legislature 120,352 71,933 48,419 56 — 78 

Legislature 117,441 75,792 41,649 - 78 

By the People 96,745 110,840 - 14,095 83 


Measures under the initiative and referendum were 
submitted at three elections in 1910. At the special 
election on June 11, two propositions were submitted, 
both initiated by the people. One was a proposed amend¬ 
ment to section 9, article IX of the constitution. This sec¬ 
tion prohibited any railroad or transportation company 
organized under the laws of this state to consolidate with 
any other railroad organized under the laws of this state, 
or any other state or the United States. The promoters of 
several independent lines in Oklahoma sought the repeal of 

d4 In re Initiative Petition No. 2, 26 Okla. 548, 109 Pac. 823. 

“Failed to receive a majority of all votes cast. 

“Ibid. 

57 Submitted for “Advisory purposes only.” 

'"’Proposed law. 







The Initiative and Referendum 


291 


this section in order to permit them to sell to trunk lines. 
The second was a proposal to move the capital and vote 
upon its location either at Guthrie, Shawnee or Oklahoma 
City. The first measure was defeated by a good majority, 
while the second proposition carried but was declared illegal 
by the supreme court. 58 * 1 Sixty-four per cent of the vot¬ 
ers at the last general election voted upon both proposi¬ 
tions. At the August primaries was submitted a con¬ 
stitutional amendment initiated by the people, compris¬ 
ing the “grandfather clause” in force in many southern 
states. This amendment establishes an educational 
qualification for the exercise of suffrage, but exempts 
from its applications all those who could vote on Jan* 
uary 1, 1866, or at any time prior thereto and the lineal 
descendants of such persons, thereby exempting the ig¬ 
norant white but disqualifying the ignorant negro. Ow¬ 
ing to the manner in which the amendment was voted 
upon, it carried by a good majority. At the bottom of 
the ballot and in small type were printed the words “For 
the Amendment.” To vote against the amendment the 
voter had to scratch out those words with a lead pencil, 
and should he leave his ballot unmarked, he was counted 
as favoring the amendment. In a number of precincts no 
pencils were furnished and the process was likely to mis¬ 
lead the simple and inattentive voter. The United 
States Supreme Court, however, declared the amend¬ 
ment unconstitutional. 59 

At the general election in November, 1910, six meas¬ 
ures were submitted, comprising four constitutional 
amendments, the New Jerusalem Plan for a second time, 
and a referendum against the Bryan Election Law. Of 

^Smith r. State. 28 Okla. 235, 113 Pae. 932. 

"Guinn v. U. S., 238 U. S. 347. 



292 


Government of Oklahoma 


the constitutional amendments, two were initiated by the 
people, i. e. the woman suffrage and local option 
amendments. Those submitted by the legislature were: 
an amendment providing that all taxes paid by 
corporations for the maintenance of common schools 
should be distributed as other school funds; and 
an amendment to section 9, article IX, permitting 
railroad consolidation. The amendments were all de¬ 
feated, two of them by adverse majorities, and the 
others—the railroad and tax distribution amend¬ 
ments—while receiving a majority of all votes cast 
thereon, did not receive a majority of all votes cast at 
the election. The last two amendments received only 
a little more than fifty per cent of the total votes, while 
the local option amendment maintaining its usual inter¬ 
est, received ninety-one per cent of the votes. The ref¬ 
erendum against the election law failed, as did the plan 
for the “New Jerusalem,” owing to the fact that a heat¬ 
ed contest was now on between Guthrie and Oklahoma 
City for the capital location. 

ELECTION OF 1910. 


By Whom Majority Majority Pet. 

Name of Measure Submitted Yes No Appro v'g Against Voting 

Amendment to Sec. 9, 

Art. 9 _ By the People 53,784 108,205 54,421 

Location of Etate Capitol By the People 96,448 64,522 31,926 - 

"Grandfather Clause"— By the People 134,443 106,222 28,221 _ 

Woman Suffrage _ By the People 88,808 128,828 40,120 85 

Tax Distribution___ Legislature 101,636 43,133 58,503 60 _ 57 

Amendment to Sec. 9, 

Art. 9 _i_ Legislature 83,169 55,17 5 27,994 61 _ 54 

Local Option _ By the People 105,041 126,118 21,077 91 

Bryan Election Law 62 _By the People 80,146 106.459 26,313 70 

"New Jerusalem Plan” 63 By the People 84,366 118,899 34,533 86 


60 Failed to get a majority of all votes cast. 
ei lbld. 

52 Referendum against a legislative measure. 
63 Proposed law. 















The Initiative and Referendum 293 

The fifth referendum was held in April, 1911, when 
the legislature for the second time submitted the rail¬ 
road consolidation amendment. It was again defeated, 
this time by only a small majority. That very little in¬ 
terest was taken was indicated by the fact that only 
thirty-four per cent of those voting at the last general 
election took the time to register an opinion. 

ELECTION OF 1911 


By Whom Majority Majority Pot. 

Name of Measure Submitted Yes No Approv’g Against Voting 

Amendment to Sec. 9, 

Article IX - Legislature 41,768 46,662 _ 4,894 


At the primary election in 1912 was submitted a plan 
initiated by the people establishing direct election of 
United States Senators, resembling the Oregon plan. By 
this proposal, the people when voting for members of 
the legislature would at the same time declare their 
preference for United States Senators, and the candi¬ 
dates for the legislature would be required to state 
whether or not they would be bound by the popular 
wish. This law was adopted by a tremendous majority; 
but its operation became unnecessary by the adoption of 
the seventeenth amendment to the Federal Constitution. 

The general election in 1912 witnessed the submis¬ 
sion of three constitutional amendments, two initiated 
by the people and one submitted by the legislature. 
Guthrie, determined to regain the capital of the state, 
filed an initiative petition demanding a resubmission of 
the capital question. The people of the state, however, 
returned a majority of 16,557 in favor of Oklahoma City. 
The other initiated proposition, providing for the crea¬ 
tion of a board of agriculture consisting of eleven mem¬ 
bers, all of whom were to be farmers, was adopted by 
a huge majority. The legislature submitted the school 




294 


Government of Oklahoma 


aid amendment, which failed because it fell short of the 
constitutional majority. The purpose of this amend¬ 
ment was to give the legislature additional power to levy 
taxes for the support of public schools in those counties 
where the ten per cent ad valorem tax is not sufficient. 

ELECTION OF 1912 


Nam® of Measure 

By Whom 
Submitted 

Yes 

No 

Majority 

Approv'g 

Majority 

Against 

Pet. 

Voting 

Popular Nomination of 

U. S. Senators-- 

By the People 

139,844 

23,400 

116,444 


75 

Location of State Capitol 

By the People 

103,106 

43,133 

16,557 s4 


57 

School Aid Bill _ _ _ 

Legislature 

100,042 

65,436 

34,606 s5 


65 

Creating a Board of Ag- 

iriculture _ —_ 

By the People 

164,530 

63,586 

100,944 


91 


i 


In August, 1913, a special election was called to con¬ 
sider five propositions: four constitutional amendments, 
all submitted by the legislature, and a referendum 
against the mining bill passed by the legislature. The 
railroad consolidation amendment, submitted now for 
the fourth time, was carried. The distributive tax meas¬ 
ure, submitted for the second time, was likewise passedc 
The other amendments, one providing for the modifica¬ 
tion of the state board of agriculture already created, 
and another giving sixteen per cent of the voters in any 
county the privilege of calling an election for the crea¬ 
tion or the abandonment of any township, were likewise 
passed. This being a special election, all that the 
amendments required was a bare majority in their favor. 
At the general election in 1910, the railroad amendment 
and the tax distribution measure received 83,169 and 
101,636 votes respectively, with 27,994 and 58,503 ma¬ 
jorities; but were defeated because they failed to re¬ 
ceive a majority of votes cast for candidates. Yet at 

"Failed to get a majority of all votes cast. 

"Ibid. 








The Initiative and Referendum 295 

the special election where they received 59,437 and 63,- 
330 votes with majorities of only 24,322 and 15,878, 
they became laws. Thus twenty-three per cent of the 
voters imposed upon the entire state a measure which 
forty per cent of the voters at a general election had 
approved without making it effective. Much depends 
upon the kind of election, whether general or special. 
The referendum against the mining bill was likewise suc¬ 
cessful, and the legislative measure, due to the great 
opposition offered by the miners of the state, was vetoed. 
This is the first instance in the experience of Oklahoma 
under the referendum, where a referendum against a 
legislative act has succeeded in vetoing the law. It is 
well to note in passing that the amendments adopted at 
this special election are the only amendments, submitted 
by the legislature, that were ratified by the people, and 
at this election only thirty-seven per cent of those voting 
at the next general election took the trouble to vote. 

ELECTION OF 1913 


By Whom Majority Majority Pot. 

Naano of Measure Submitted Yes No Approv’g Against Voting 

Amendment to Art. IX, 

Sec. 9 _ Legislature 59.437 35,115 24,322 _ 

Mining Bill 66 _ By the People 73,345 21,559 51,786 _ 

Tax Distribution)_*_ Legislature 63,330 30,295 33,035 _ 

Township Bill _ Legislature 50,634 39,690 10,944 _ 

Creating State Board 

of Agriculture _ Legislature 67,367 25,087 42,280 _ 


The primary election in 1914 found five measures 
presented. The legislature for the second time sub¬ 
mitted the school aid amendment, which succeeded no 
better than the first attempt. Its failure was again due 
to the lack of a constitutional majority, although the 
amendment received a majority of 32,735 votes. The 
referendum was demanded against the anti-gambling 


60 A referendum against the mining bill. 











296 


Government of Oklahoma 


and race horse bill, and the law abolishing slot ma¬ 
chines; but in each case the legislature was sustained. 
A law initiated by the people, establishing a system of 
direct taxation, received a majority of votes but failed 
to get a constitutional majority. The fifth measure was 
a constitutional amendment making excessive drunken¬ 
ness by public officials grounds for impeachment. This 
was the only measure successful. 

Through the efforts of Charles West, candidate for 
governor in 1914, four constitutional amendments, gen¬ 
erally known as the “West Amendments/' were submit¬ 
ted at the general election that year. They provided, 
respectively: The reduction of the number of appel¬ 
late courts; the reduction of the state levy from three 
and one-half to two and one-half mills; a mine produc¬ 
tion tax of two per cent upon the gross value of the 
production of gas, crude oil, and petroleum, and pro¬ 
viding its distribution among the road and bridge, and 
common school funds; the reduction of the legislature 
to one body of eighty members. While each amend¬ 
ment received a majority of votes, none received a ma¬ 
jority of all votes cast. 


The Initiative and Referendum 


297 


ELECTIONS OF 1914 

By Whom Majority Majority Pet. 

Name of Measure Submitted Yes No Approv’g Against Voting 

School Aid Bill - Legislature 89,653 56,916 32,737™ _ 82 

Anti-gambling Bill 67 - By the People 68,878 76,495 _ 7,617 80 

Slot Machine 68 - By the People 67,562 73,770 ! 6,208 74 

Direct Taxation 69 - By the People 88,99 4 4 5,2 3 2 43,7 62 71 74 

Drunkenness Cause for 

Impeachment_ By the People 114,833 31,659 83,174 _ 84 

Reduction of Appellate 

Courts -*- By the People 105,529 64,782 40.747 72 _ 67 

Reduction of State Levy By the People 117,675 57,120 60,555 73 69 

Milne Production Tax_/ By the People 107,342 62,380 44,962 74 66 

Reduction of Legislature By the People 94,686 71,742 22.944 7B 66 

Action under the initiative and referendum was not 
taken again until the primary election in 1916, at which 
time the legislature submitted nine constitutional amend¬ 
ments: Creating a tax commission of three members 
to replace the existing board of equalization, impos¬ 
ing a literacy test for the exercise of the franchise, 
distributing taxes derived from corporations, reduc¬ 
ing the salary of the clerk of the supreme court, al¬ 
lowing the legislature to provide for compulsory or elec¬ 
tive compensation by the employer to the employee in 
case of death or permanent disability, limiting municipal 
debts, consolidating the supreme and criminal courts 
of the state, reducing the number of jurymen in 
the district court to eight except in capital cases, 
abolishing the county courts and vesting their jurisdic¬ 
tion in the district courts. These amendments were 
prompted by a demand on the part of the electorate for 
greater economy in public administration. Whatever 


"Referendum against legislative act. 
""Referendum against legislative act. 

""Initiated law. 

’"Failed bo get a majority of all votes cast. 
71 Ibid. 

72 Ibid. 

78 Ibid. 

74 Ibld. 

75 Ibid 















298 


Government of Oklahoma 


might have been the attitude of the people in the mat¬ 
ter of economy, they were nevertheless opposed to such 
a fundamental change, and the amendments were all 
decisively defeated with from 42,535 to 110,090 ma¬ 
jorities. 

Two constitutional amendments, each initiated by the 
people, were submitted at the general election in Nov¬ 
ember, 1916. The first abolished all election laws and 
provided an election board composed of members each 
appointed by the chairmen of the three political parties 
casting the highest number of votes at the last general 
election. This had its origin in the desire of the Social¬ 
ist party to have a member on the election board. The 
second forbade the legislature to pass any registration 
law, and provided that such laws should be enacted only 
through the initiative and referendum. Both failed to 
receive a constitutional majority. 

ELECTIONS OF 1916 

By Whom Majority Majority Pot. 

Name of Measure 1 Submitted Yes No Approv'g Against Voting 

State Tax Commission -Legislature 50,656 146,130 95,474 70 

Literacy Test -Legislature 90,605 133,140 42,535 80 

Distribution of Taxes-Legislature 76,093 127,525 51,432 71 

Reducing! Salary Supreme 

Court Clerk -(Legislature 58,933 134,963 ; _ 76,030 69 

Limiting Municipal Debt -Legislature 44,687 147,933 103,246 69 

Compulsory Compensation _Legislature 50,998 139,132 88,134 69 

Consolidation of Appellate 

Courts - Legislature 42,896 106,896 __ 64,000 69 

Reduction, of Number of 

Jurymen - Legislature 49,954 142,333 _ 92,379 69 

Abolishing County Court—..Legislature 47,104 157.284 110J80 73 

Election Law-By the People 147,067 119.602 27.465 76 _ 87 

Registration Law -By the People 140,366 114,824 25]5 4 2 77 _ 84 

The state woman’s suffrage amendment was submitted 
to the people by the legislature at the general election 
in 1918, and received a majority of all votes cast. 

76 Failed to get a majority of all votes cast. 

7T Ibid. 




















The Initiative and Referendum 


299 


ELECTION OF 1918 


By Whom Majority Majority Pet. 

Name of Measure Submitted Yets No Approv’g Against Voting 

Woman's Suffrage-Legislature 106,909 81,481 25,428 _ 


At a special election in May, 1919, the people re¬ 
jected by a great majority a constitutional amendment 
submitted by the legislature, providing for a highway 
commission composed of members appointed by the gov¬ 
ernor with the consent of the senate, and for the issu¬ 
ance of bonds in the sum of $50,000,000 for the construc¬ 
tion of good roads. 

ELECTION OF 1919 

By Whom Majority Majority Pet. 

Name of Measure Submitted Yes No Approv’g Against Voting 

Good Roads Amendment-Legislature 69,917 171,3^7 _101,410 

At the general election in 1920 five measures were 
submitted to the people—a bill to 'Veto and render in¬ 
operative” a legislative enactment; and four constitu¬ 
tional amendments, one of which was a measure to vi¬ 
talize a former amendment that the people had placed 
in the constitution but which the legislature had failed 
to vitalize. Strange as it may seem, the only one of 
these measures adopted was the veto on the legislative 
measure. 

ELECTION OF 1920 

By Whom Majority Majority Pet. 

Name of Measure Submitted Yes No Approv’g Against Voting 

Reg. Practice of Medicine_By People 211,252 164,788 46,464 - 77 

Vitalize Sec. 12A_By People 162.749 179,271 16,522 70 

Maintenance of Com. Schools_By People 169,639 188,574 18,935 73 

Providing certa#i classes of In¬ 
surance organizations -^Legislature 157,064 159,919 2,855 65 

Compensation of members of 

Legislature _Legislature 125,463 173,274 47,811 60 

The eighth legislature passed a concurrent resolution 
“authorizing the holding of an election for the purpose 
of voting upon a proposed amendment to Section 9, Ar¬ 
ticle X, of the Constitution of the State of Oklaho- 











300 


Government of Oklahoma 


ma,” 78 which limits the school district levy for the sup¬ 
port of common schools to five mills, with a possible in¬ 
crease of ten mills more “on condition that a majority 
of the voters thereof, voting at an election, vote for said 
increase.” 79 It is interesting to note that although in 
the concurrent resolution the governor is “authorized 
and directed” to call a special election for the purpose 
of submitting this amendment to the people, and ah 
though he approved this bill on April 2, 1921, no spec¬ 
ial election has been called to date. (May, 1922) 

SUMMARY 


TABLE I. CONSTITUTIONAL AMENDMENTS PROPOSED BY 


LEGISLATURE. 


Name of Bill _ 

Date 

For 

Against 

Liquor Agtency _ _ _ _ _ 

Torrens Land Titles 

Location of State Capitol 

Tax Distribution (“Sec. 12 A’’) 
Amendment to Sec. 9, Art. 9 

1908 

1908 

1908 

1910 

1910 


X 

Amendment to Sec. 9, Art. 9 

School Aid Bill 

1911 

1912 


X 

Amendment to See. 9. Art. 9 

1913 

X 


(fourth time) 

Tax Distribution _ 

1913 

X 


(creating Sec. 12 A) 

Township Bill 

1913 

X 


Creating State Board of Agriculture_ 

School Aid Bill 

1913 

1914 

X 


State Tax Com. 

1916 


X 

Literacy Test 

1916 


X 

Distribution of Taxes (“iSec. 12 A")_ 

1916 


X 

Reducing Salary of Supreme Court Clerk 

1916 


X 

Limiting Municipal Debt 

1916 


X 

Compulsory Compensation _ _ 

1916 


X 

Consolidation of Appellate Courts _ 

1916 


X 

Reduction of number of Jurymen__ 

1916 


X 

Abolishing County Court _ _ 

1916 


X 

Woman Suffrage __ _ 

1918 

X 


Good Roadis Bill 

1919 


X 

Insurance Organizations 

1920 


X 

Pay of Legislature ____ 

1920 


X 


25 Constitutional amendments submitted by Legislature 


5 were passed. 

14 were voted diown. 

fi failed for lack of majority of all votes cast. 


Failed to get 
a majority of 
all votes cast 


x 

x 

x 

x 

X 


X 


78 S. L. 1921, Ch. 142. 
79 Const. Art. X, Sec. 9. 


* 

























301 


The Initiative and Referendum 


TABLE II. CONSTITUTIONAL AMENDMENTS INITIATED BY 


THE PEOPLE. 


Name of Bill 

Amendment to Art. 9, Sec. 9 - 

Location of State Capitol _ 

"Grandfather Clause" _!_ 

Woman Suffrage - 

Local Option _ _ _ 

Location of 'State Capitol _ 

Creating Board of Agriculture _ 

Drunkenness Cause for Impeachment 

Reduction of Appellate Courts __ 

Reduction of State Levy _ 

Mine Production Tax _ 

Reduction of Legislature _ 

Election Law __ 

Registration Law _ 

Vitalize Sec. 12 A _ 

Maintenance of Common Schools-. _ 


Date 

For 

Failed to get 
Against a majority of 

1910 

., . 

all votes cast 

X 

1910 

X 

Supreme Court declared it 

1910 

X 

illegal 

U. S. Supreme Court de¬ 



clared it) unconstitutional 

1910 


X 

1910 


X 

1912 


X 

1912 

X 


1914 

X 


1914 


X 

1914 


X 

1914 


X 

1914 


X 

1916 


X 

1916 


X 

1920 


X 

1920 


X 


16 popularly initiated amendments. 

4 were passed. 

6 were voted down. 

6 failed for lack of majority of all votes cast. 


TABLE III. LAWS INITIATED BY THE PEOPLE. 






Failed to get 

Name of Bill _ _ _ _ __ 

Date 

For 

Against 

a majority of 
all votes cast 

Sale of School Lands _ 

1908 


X 


New Jerusalem Plan 

1910 


X 


Direct Nomination of U. S. Senators_ 

1912 

X 




(Seventeenth U. S. Amendment made inoperative) 
Direct Taxation _ 1914 x 


4 laws initiated by people. 

1 was passed (now inoperative). 

2 were voted down 

1 failed for lack of majority of all votes cast. 


TABLE IV. SUBMITTED BY LEGISLATURE FOR POPULAR 

APPROVAL. 


Failed to get 

Name of Bill- Date For Against a majority of 

all votes cast 

New Jerusalem Plan _ 1908 x 


Popular approval secured "for advisory purposes." 
























302 Government of Oklahoma 


TABLE V. REFERENDA DEMANDED BY PEOPLE. 


Veto of Legislative Acts (Referenda against law) 


Name of Bill- 

Bryan Election Law (Ref. Against)-- 

Mining Bill (Ref. to Veto)- 

Slot Machine Bill (Ref. Against)- 

Anti-gambling Bill (Ref. Against)- 

Regulating Practice of Medicine (Ref. 
Against)- 


Date 

Foe 

Against 

Failed to get 
a majority of 

1910 

1913 

X 

X 

(In favor of 

all votes cast 

vetoing) 

1914 

1914 

1920 

X 

X 

X 

(In favor of vetoing) 


5 referenda aghinst legislative action. 

2 were carried. 

3 were voted down. 


During the period in which the initiative and refer¬ 
endum have been in operation in Oklahoma, fifty-one 
measures were voted upon at various elections. Of 
these, twenty-six were submitted by the legislature; 
twenty were initiated by the people; and on five occa¬ 
sions a referendum was demanded against a legislative 
act. Twenty-five of those submitted by the legislature 
were constitutional amendments; and one, the “New Je¬ 
rusalem Plan,” was submitted for “advisory purposes 
only.” Only five of the twenty-five submitted were rat¬ 
ified by the people. Six of the rejected amendments re¬ 
ceived a majority of those voting on the measure, some 
as large as 60,000, but failed to secure a majority of all 
votes cast, while fourteen were defeated by adverse ma¬ 
jorities. This phase of the question is not new, for leg¬ 
islatures have for decades submitted amendments to the 
people, and in most states the submission of constitu¬ 
tional amendments is mandatory. Every amendment 
submitted under article V of the constitution might as 
well have been submitted under article XXIV of the con¬ 
stitution, which provides for regular constitutional amend¬ 
ments in the same manner as the constitutions of a num¬ 
ber of states where the initiative and referendum are not 
in force. Thus far nothing has been added to the con- 







The Initiative and Referendum 


303 


stitution of Oklahoma that could not have been brought 
about by the common method of constitutional amend¬ 
ment in other states. The legislature of Oklahoma in 
the same number of years, has submitted more amend¬ 
ments than the legislatures of most states, but this can 
be attributed to the fact that the state is new and the 
problems of adjustment are more numerous. 

Those who contend that through the initiative the peo¬ 
ple will enact laws that will serve their interest and pro¬ 
mote their welfare more than those passed by the legisla¬ 
ture, are doomed to disappointment in the experience of 
Oklahoma. Of the twenty measures initiated by the 
people, fifteen were defeated,, although seven received 
a majority of those voting upon the measure, but not a 
majority of all votes cast for candidates. The meas¬ 
ures adopted were: 1. providing for the “Grandfather 
Clause”; 2. creating a state board of agriculture; 3. lo¬ 
cating the state capital; 4, making drunkeness grounds 
for impeachment, and; 5. providing for the direct elec¬ 
tion of United States Senators. Of these, the “Grand¬ 
father Clause” was declared invalid by the United 
States Supreme Court; the vote upon the state capital was 
declared illegal; the board of agriculture was modified 
by a subsequent legislature; the initiated law became 
inoperative upon the adoption of the seventeenth amend¬ 
ment to the Federal Constitution; and the amendment 
making drunkenness a cause for impeachment is the 
only initiated measure in force today. This amendment 
is of little consequences now, and would meet no ser¬ 
ious opposition anywhere. 

On the other hand, the prophecy that the initiative 
and referendum would lead to hasty and radical legis¬ 
lation has not been fulfilled. The initial petition has 
been filed on one hundred and ten questions, but only 


304 


Government op Oklahoma 


twenty-five went so far as being voted upon. Many of the 
petitions were never seriously considered, and were filed 
merely for political purposes; in others the petition failed 
because of the inability to secure signatures. That the 
initiative and referendum have accomplished nothing 
extraordinary is self-evident; whether they have caused 
any political instability, time alone must determine. 


CHAPTER IX 


THE TAXATION AND REVENUE SYSTEM 

In describing the taxation and revenue system of the 
State of Oklahoma four points should be considered. 

I. General constitutional and statutory provisions 
governing taxation and revenue. 

II. State taxes, their assessment and collection. 

III. Revenue derived from sources other than taxation. 

IV. The custody and the disbursement of state money. 

GENERAL CONSTITUTIONAL AND STATUTORY FROVISIONS GOV¬ 
ERNING TAXATION AND REVENUE 

Oklahoma, in common with other states, has placed 
in its constitution several provisions relating to this sub¬ 
ject. They may be divided roughly into (A) Powers 
specifically given the legislature in respect to taxation 
and (B) Limitations upon the power of the legislature 
in respect to taxation and revenue. 

A. By Article X, Section 2, of the constitution, the 
legislature is required to “provide by law for an annual 
tax sufficient, with other resources, to defray the esti¬ 
mated ordinary expenses of the State for each fiscal 
year.” In case the expenses of any fiscal year shall 
3 xceed the income, “the Legislature may provide for 
evying a tax for the ensuing fiscal year, which, with 
>ther resources, shall be sufficient to pay the deficiency, 
s well as the estimated ordinary expenses of the State 
or the ensuing year.” 1 For paying the state debt 
le legislature must also provide for levying a tax an- 


’Const., Art. X, Sec. 


305 







306 


Government of Oklahoma 


nually, sufficient to pay the principal and interest of 
such debt within twenty-five years from the final pass¬ 
age of the law which created the debt. 2 

“The State may select its subjects of taxation, and 
levy and collect its revenues independent of the counties, 
cities or other municipal subdivisions.” 3 

The legislature has power, also, “to provide for the 
levying and collection of license, franchise, gross reve¬ 
nue, excise, income, collateral and direct inheritance, 
legacy, and succession taxes; also graduated income 
taxes, graduated collateral and direct inheritance taxes 
and graduated legacy and succession taxes; also stamp 
registration production or other specific taxes.” 4 

“The legislature may authorize the levy and collec¬ 
tion of a poll tax on all electors of the State, under 
sixty years of age, not exceeding two dollars per capita 
per annum, and may provide a penalty for the non-pay¬ 
ment thereof.’^? 

B. The limitations placed upon the legislature ir 
respect to taxation and revenue may be divided undei 
two general heads, (a) Limitations in respect to legis 
lative procedure and (b) Direct limitations upon legis 
lative discretion. 

(a). There are several limitations upon the legisls 
ture in respect to procedure. Article V, Section 3‘ 
of the constitution, provides that “All bills for raisir 
revenue shall originate in the House of Represent 
fives. The Senate may propose amendments to reveni 


Tbid. See-. 4. 

Tbid, See. 13. 

4 Const., Art. X. See. 12. 
Tbid, See. 18. 



Taxation and Revenue System 307 

bills. No revenue bill shall be passed during the last 
five days of the session .” 0 

“Every act enacted by the Legislature_levying a 

tax shall specify distinctly the purpose for which said 
tax is levied, and no tax levied and collected for one. 
purpose shall ever be devoted to another purpose .” 7 

Every bill introduced into the legislature must be 
read on three different days in each house. On final 
passage it must be read at length. Bills must be passed 
Dy a majority of each house." Every bill, before it be¬ 
comes a law, after being passed by a majority vote of 
the legislature, must be presented to the governor, 
who has a right to veto it. The governor is given the 
further power to veto any item of an appropriation; 
bill. In case of the disapproval of a bill by the govern¬ 
or, he returns it to the house from which it originated.. 
Any bill or item disapproved is void unless repassed 
by a two thirds vote of both houses . 9 

(b) There are, likewise, a number of direct limita¬ 
tions upon the legislature with respect to taxation and 
revenue. The legislature cannot in any way, either by 
general, special or local laws exempt property from tax¬ 
ation other than the property exempted by the consti¬ 
tution . 10 An important limitation upon the state's tax¬ 
ing power is the status of Indian lands, which has. 

Tbid, Art. V, Section 33. a. Revenue laws, in contemplation of 
txiis section are only those whose principal purpose is the raising of 
revenue, and not those under which revenue may incidentally arise. 
Ex Parte Ambler, 11 Okla. Crim. 449, 148 Pac. 1061. b. Under this 
section a revenue bill is one that levies taxes in the strictest sense of 
the word. Johnson v. Grady County, 50 Okla. 188, 150 Pac. 497. 

Tbid, Art. X, Sec. 19. 

Tbid, Art. V, Sec. 34. 

Tbid, Art. VI, Secs. 11 and 12. 

30 Ibid, Art. V. Sec. 46. 


308 


Government of Oklahoma 


been summed up as follows by Mr. Lawrence Mills, in 
his valuable book, Lands of the Five Civilized Tribes. 

“The State of Oklahoma, with respect to the power of 
taxing the lands of the Five Civilized Tribes, however, 
is in a peculiar position. By Section 1 of the Act of 
June 16, 1906 (Enabling Act), the present State of 
Oklahoma was authorized to adopt a constitution and 
be admitted into the Union as a state: ‘Provided that 
nothing contained in the said constitution shall be con¬ 
strued to limit or impair the rights of persons or prop¬ 
erty pertaining to the Indians of said territories (so 
long as such rights shall remain unextinguished) or to 
limit or affect the authority of the government of the 
United States to make any law or regulation respecting 
such Indians, their lands, property, or other rights, by 
treaties, agreements, law or otherwise, which it would 
have been competent to make if this Act had not been 
passed/ And by Section 22 of said Act, the Constitu¬ 
tional Convention was required by ordinance irrevoca¬ 
ble to accept the terms and conditions thereof, which 
was done on the 22nd day of April, 1907. In pursuance 
of the paramount authority of Congress with respect to 
the persons and property of the Indians, there was ex¬ 
empted from taxation by Art. X, Section 6 of the Con¬ 
stitution ‘such property as may be exempt by reason of 
treaty stipulations existing between the Indians and the 
United States Government, or by Federal laws, during 
the' force and effect of such treaties or Federal laws/ 

“The lands of the Five Civilized Tribes are therefore 
subject to taxation by the State except as they may be 
exempt therefrom by virtue of some treaty between the 


Taxation and Revenue System 


309 


United States and the respective tribes, or a law of Con¬ 
gress or provision of the State Constitution. 11 

“Exemption from taxation, in varying degrees, was 
granted to the members of each of the Five Civilized 
Tribes, under the treaties by which the lands of the sev¬ 
eral tribes were allotted in severalty. These treaty pro¬ 
visions have been held to confer vested rights which were 
not subject to abrogation by Congress.” 

Nor is the legislature permitted to remit fines, pen¬ 
alties, and forfeitures or refund moneys legally paid into 
the treasury. 12 Nor has the legislature power to re¬ 
lease or extinguish or to authorize the releasing or ex¬ 
tinguishing in whole or in part of the indebtedness, lia¬ 
bilities, or obligations of any corporations, or individual 
to the state, county, or other municipal subdivision of 
the state. 13 The legislature is not permitted to ex¬ 
tend the time for collection of taxes “or otherwise re¬ 
lieve any assessor or collector of taxes from due per¬ 
formance of his official duties or his securities from lia¬ 
bility.” 

Article X, Section 5, of the constitution, provides that 
the “power of taxation shall never be surrendered, sus¬ 
pended or contracted away.” Taxes must be uniform 
upon the same class of subjects. All property which is 
taxed on the ad valorem basis must be assessed for 
taxation at its fair cash value, estimated at the price it 
would bring at a fair voluntary sale. 15 

n Sliock v. Sweet, 45 Okla. 51, 145 Pac. 388; Kidd v. Roberts, 
43 Okla. 603, 143 Pac. 862; Allen v. Trimmer, 45 Okla. 83, 144 Pac. 795; 
Gleason v. Wood, 38 Okla. 502, 144 Pac. 702; United States v. Shock, 
187 Fed. (00) 862. 

“Const., Art. V. Sec. 4G. 

“Ibid, Sec. 53. 

“Ibid, Sec. 46. 

“Ibid, Art. X, Sec. 8. 



310 


Government of Oklahoma 


The constitution provides for a definite limitation up¬ 
on the number of mills of tax which may be levied up¬ 
on an ad valorem basis. For all purposes, state, county, 
township, city or town, and school district, the total 
tax must not in any one year exceed thirty-one and one- 
half mills on the dollar. The constitution further provides 
that the state levy must not be over three and one- 
half mills; that the county levy must not exceed eight 
mills, with the proviso “that any county may levy not 
exceeding two mills additional for a county high school 
and aid to the common schools of the county, not over 
one mill of which shall be for such high school, and the 
aid to such common schools shall be apportioned as 
provided by law.” The township levy must not be over 
live mills, the city or town levy not more than ten mills, 
nor the school district levy more than five mills for 
school district purposes for the support of common 
schools. This annual rate for school purposes, however, 
may be increased by any school district by an amount 
not to exceed ten mills on the dollar of valuation, on 
the condition that a majority of voters in the district, 
at a duly held election, vote for this increase. 16 This 
constitutional provision is further limited by a law pro¬ 
viding that the county may not levy more than four 
mills, with the added proviso that it may levy one mill 
additional in aid of the common schools of the county 
and that where the assessed valuation is less than 
$5,000,000, the county shall levy not to exceed sev¬ 
en mills for current expenses, and one mill in aid 
of the common schools of the county. There is a 
further provision that where the assessed valuation is less 
than $13,500,000, the county levy shall not exceed six 


'Const., Art. X, Sec. 9. 



Taxation and Revenue System 311 

mills for current expenses and one mill additional in aid 
of the common schools of the county. The city may not 
levy more than six mills, the incorporated town not 
more than four mills, the township not over one and one- 
half mills, and the school district, for common schools, not 
over five mills. In all cases, current expenses do not 
include sinking fund levies, interest on bonded indebt¬ 
edness, or the payment of judgments. The county ex¬ 
cise board may levy one additional mill for tick eradi¬ 
cation. 17 

For the purpose of erecting public buildings in coun¬ 
ties, cities, or school districts, these limitations may 
be exceeded, when the rate of such increase and the 
purpose for which it is intended shall have been sub¬ 
mitted to a vote of the people, and a majority of the 
qualified voters within such a district have voted favor¬ 
ably therefor. Such an increase shall not, however, ex¬ 
ceed five mills on the dollar on the assessed valuation 
of the taxable property in such county, city or school 
district. 18 

The constitution, by implication, gives the legislature 
power to classify property for the purpose of taxation 
and to value different classes of property by different 
means or methods. 19 Taxes must be levied and col¬ 
lected, however, by general laws and must be for pub¬ 
lic purposes only, except where it is necessary to carrv 
into effect section 31 of the Bill of Rights, which 
provides that the state has a right to engage in any 
occupation or business for public purposes except agri¬ 
culture, which may be engaged in only for educational 


W S. L. 1917, Ch. 262. 
“Const., Art. X, Sec. 10. 
“Ibid, Sec. 22. 



312 


Government of Oklahoma 


and scientific purposes or for the support of the penal, 
charitable and educational institutions of the state . 20 

Certain property in the state, by constitutional pro¬ 
visions, is especially exempted from taxation . 21 

The legislature is further required to see that all mon¬ 
eys collected by taxation, fees, fines, and public charges 
of other kinds, be accounted for “by a system of ac¬ 
counting that shall be uniform for each class of ac¬ 
counts, state and local, which shall be prescribed and 
audited by authority of the State.” 22 

20 Ibid, Sec. 14. 

21 Ibid, Sec. 6. All property used for free public libraries, free 
museums, public cemeteries, property used exclusively for religious 
and charitable purposes, and all property of the United States, and of 
this State, and of counties and of municipalities of this State; house¬ 
hold goods of the heads of families, tools, implements, and livestock 
employed; in the support of the family, not exceeding one hundred dol¬ 
lars in value, and all growing crops, shall be exempt from taxation: 
Provided, That all property not herein specified now exempt from tax¬ 
ation under the laws of the Territory of Oklahoma, shall be exempt 
from taxation until otherwise provided by law: And Provided further, 
That there shall be exempt from taxation to all ex-Union and ex-Con- 
federate soldiers, bona fide residents of this State, and to all widows 
of ex-Unlon and ex-Confederate soldiers, who are heads of families and 
bona fide residents of this State, personal property not exceeding two 
hundred dollars in value. (Bunn’s Ed. Sec. 269.) 

All property owned by the Marrow Indian Orphan Home, located in 
Coal County, and all property owned by the Whitaker Orphan Home, 
located in Mayes County, so long as the same shall be used exclusively 
as free homes or schools for orphan children, and for poor and indigent 
persons, and all fraternal orphan homes and other orphan homes, to¬ 
gether with all their charitable funds, shall be exempt from taxation, 
and such property as may be exempt 'by reason of treaty stipulations, 
existing between the Indians and the United States government, or 
by Federal laws, during the force and effect of such treaties or Fed¬ 
eral laws. The Legislature may authorize any incorporated city or 
town, by a majority vote of its electors voting thereon, to exempt man¬ 
ufacturing establishments and public utilities from municipal taxation, 
for a period not exceeding five years, as an inducement to their loca¬ 
tion. (Bunn’s Ed. Secs. 270, 271.) 

21 Const.. Art. X. Sec. 30. 



Taxation and Revenue System 


313 


The legislature may not impose taxes for the bene¬ 
fit of any county, city, town, or other municipal cor¬ 
poration but may, by general laws, confer on these gov¬ 
ernmental units themselves the power to assess and col¬ 
lect taxes. 23 

STATE TAXES, THEIR ASSESSMENT AND COLLECTION 

There are several authorities, both state and local, 
which have to do with the assessment, levying and col¬ 
lection of taxes. Since most of the main taxes in the 
state are handled by several different authorities, it will 
be necessary to describe these taxes and the methods 
used in their levy and collection somewhat in detail. 

THE GENERAL PROPERTY TAX 

For the purpose of describing the taxation system of 
the state the general property tax may be considered as 
the regular ad valorem tax provided for in the constitu¬ 
tion which is not assessed or collected in special ways. 
Those ad valorem taxes which are assessed in special 
ways, such as the bank stock tax, the gross production 
tax, and the public utility tax, will be considered sep¬ 
arately. 

The general property tax, with the exception of the 
tax on public utilities, is assessed by the county assessor, 
an official who is elected by the qualified electors of the 
county. Beginning on January fifteenth of each year, 
he visits each city and voting precinct in the county, and 
secures statements from taxpayers as to the amount and 

23 Ibid, Sec. 20. This section does not deny to the legislature 
the right to impose taxes for purposes in which, although of a munic¬ 
ipal character, the state has a sovereign interest, such as highways. 
Ex Piarte Ambler. 148 Padific 1061. 11 Okla. Crim. 440. Neither 

does it forbid the imposition by the legislature of a tax for common 
school districts of the state. A. T. & S. F. Ry. Co. v. State, 28 Okla. 
04, 113 Pac. 921. 



314 


Government of Oklahoma 


value of property owned by them subject to the general 
property tax. Property owners are supposed to list 
their property, and as a rule no serious attempt is made 
by the assessors to make a careful survey of all the 
property listed. No valuation maps are at hand, no lot 
and block maps, or other devices for finding out the true 
value of the property. After the assessor has com¬ 
piled the property lists from these statements, 
and has added thereto all property that has not been 
voluntarily listed with penalties as provided by law 
for dereliction, he delivers the lists to the county com¬ 
missioners, who act as the county board of equalization, 
having authority to adjust, lower or raise individual as¬ 
sessments, to add omitted property and to cancel assess¬ 
ments of property not taxable. Appeals may be taken 
to the district court. In case the county board of equal¬ 
ization increases the valuation of any property above the 
value returned by the assessor, an appeal lies to the 
state board of equalization. During this hearing, the 
state auditor takes and preserves the evidence and in 
case of a last and final appeal to the supreme court 
transmits the evidence to them. The state board of 
equalization, composed of the governor, the state aud¬ 
itor, the state treasurer, the secretary of state, the at¬ 
torney general, the state examiner and inspector, and 
the president of the state board of agriculture equalizes 
assessments as between counties. 24 After fixing 
the tax levies for the year (with the exception of the 
state levy, which is fixed by the state board of equali¬ 
zation, 24a and which must by the constitution, include one- 

24 R. L. 1910, Sec. 7373. 

24 aR. L. 1910, Sec. 7373. The Revised Laws of 1910 (Sec. 73741 
charge the board of equalization with the duty of ascertaining the 
total value of property in the state and with computing the amount ap¬ 
propriated to pay expenses of government for each fiscal year, with 



Taxation and Revenue System 


315 


fourth mill for the state highway construction fund, 
and one-fourth mill for the common school fund) the 
county excise board certifies them to the county assessor 
who thereupon makes out the tax rolls, showing the total 
amount of personal, real and corporation taxes and de¬ 
livers them to the county treasurer for collection. 25 
The county treasurer is responsible for the collection of 
the general property taxes for the state, for the county, 
and for the local units as they appear on the tax roll de¬ 
livered to him by the county assessor. 23 The county treas¬ 
urer pays over to the state and local treasurers each month 
all moneys which he has collected on behalf of the state 
and local governments. 27 The general taxes are distribut¬ 
ed among the different taxing units according to the levy 
made by each. The one-fourth mill tax levied by the state 
board of equalization for the common school fund goes 
directly to that fund, 28 while the one-fourth mill levied for 
the state highway construction fund is held in trust by the 
state treasurer for the benefit of the roads in the county 

25 Bunn, 7365a to 7365p. 

25 Bunn, 736561. 

W S. L. 1917, Ch. 104. 

“Const., Art. XI, Sec. 3. R. L 1010. Sec. 7374. 

20% added thereto as an allowance for delinquent taxes; and from 
such sum deducting the estimated income from all sources other than 
income from ad valorem taxes, and of computing the rate of levy 
necessary to raise the amount required for each fiscal year. In the 
case of El Reno Wholesale Oroeery fV> vs Taylor County Treasurer, 
(Oklahoma Appellate Court Reporter Vol. XVIII, page 1) it was held 
that this section does not delegate to the legislature the right to levy, 
taxes, nor does it impose upon the board the duty of making a levy. 
They can only make a levy when this becomes necessary to meet all of 
the appropriations made by the state: but possess no general power to 
make a levy. 



316 


Government of Oklahoma 


from which it was collected. ” The state’s part of the 
general property tax goes into the general fund and is 
applicable for any legislative appropriation. 30 The state 
examiner and inspector is required to examine without 
previous notice the books of each county treasurer twice 
each year, and furthermore, is required to prescribe a uni¬ 
form bookkeeping system for such officers. 31 

The general property tax of the state of Oklahoma 
can be severely criticised in two main ways: first, be¬ 
cause of the nature of the tax, and second, in respect 
to its administration. 

The general property tax of Oklahoma, being a tax 
on the fair value of all property whether personal or 
real, necessarily makes for fraud and dishonesty in de¬ 
claring property values. It is a notorious fact that 
only a very small amount of the personal property of 
the state is declared at all for the purpose of assess¬ 
ment. Under the present system, however, to declare 
all personal property, such as bank deposits or credits 
would mean bankruptcy for the individual so doing, for 
while tangible property is only assessed at from one- 
fourth to one-half of its true value, bank deposits so 
declared would be assessed at their full value. In 
many instances, the combined state, county and local 
taxes would be greater than the interest received from 
the bank. This almost forces taxpayers to be dishonest, 
whereas, to quote from Professor Lutz’s “The State Tax 
Commission” (p. 633), “The experience with the income 
tax in Wisconsin has convinced that commission that 
the average taxpayer would rather be honest than not, 


29 S. L. 1915, Ch. 173. Art. Ill, Sec. I. 
30 R. L. 1910, Sec. 7374. 

31 Const., Art Vi, Sec 19. 



Taxation and Revenue System 


317 


unless confiscation is to be the result, but under the 
general property tax there is no assurance or safe¬ 
guard against this outcome.” A remedy for this situa¬ 
tion can only be found in a constitutional amendment 
providing for some form of classification of property 
or in an amendment providing for a different levy on 
intangible personal property than that on tangible pro¬ 
perty. If the tax on intangible personal property were 
not over one or two mills, and if it were levied separ¬ 
ately from the general property tax, the state would 
not only secure greater revenue, but it would also pre¬ 
vent dishonesty and fraud, which has become an almost 
universal habit under our present system. 

The method of assessing the general property tax is 
about as bad as it well could be. The state provides 
no general standards for local assessors, provides no 
valuation maps, no field books, no lot and block maps, 
or other methods commonly used for actually finding 
property value. Furthermore, the state furnishes no 
criteria for the determination of value. The law does 
not require that the true consideration for every con¬ 
veyance of property be inserted in the deed. Supple¬ 
mentary evidence such as is furnished by sales or actual 
rentals is not taken into consideration. Nor are such 
factors as kind of construction, cubic capacity, floor 
space, or depreciation, usually definitely taken into 
consideration in determining value. Moreover, the 
county assessors are not subjected to any higher admin¬ 
istrative control which would tend to make for some 
standardization of assessing practice. Since the asses¬ 
sors are elected by the county, and must depend upon 
the county for re-election, there is a temptation to make 
low valuations on the property of those having political 


318 


Government of Oklahoma 


or financial power within the community. Another 
great criticism that can be brought against the system 
is the fact that instead of the state’s thoroughly exam¬ 
ining the individual’s property and making an assess¬ 
ment from that valuation, each individual must swear 
in his own property. This situation puts a premium 
upon dishonesty and makes for the economic survival 
of the most dishonest men in the community, while of¬ 
fering no protection for those who are conscientious. 

EXPRESS COMPANY TAX 

This is a tax upon all express companies operating 
in the state. The assessment upon the property of 
such companies is the proportion of the value of all the 
property assessed on each express company pertaining 
to and employed in the express business, which the 
mileage of the express company in the state bears to 
the total mileage, not including ocean mileage. This 
tax is in lieu of all other taxes. The assessment of 
this tax is made by the state board of equalization, 
which transmits to the county assessor of any county in 
which such a company conducts its business a state¬ 
ment showing the mileage of the company in the county 
and the assessment made upon that company by the 
state board of equalization. This tax is collected by 
the county treasurer, who pays the state’s share to the 
state treasurer, and is distributed the same as are 
other ad valorem taxes. 33 

BANK STOCK TAX 

This is an ad valorem tax on bank stock. The value 
is determined by finding the actual value of the shares 

32 S. L. 1017, Oh. 263. 



Taxation and Revenue System 


319 


of stock less such portion as is invested in real estate, 
which is separately assessed and taxed by the state. 
This is really a tax on all stock of all banks located 
in the state. The tax is deducted by the bank officials 
before the stockholders’ dividends are paid. Every bank 
located within the state, whether such bank has been 
organized under the laws of the state of Oklahoma, 
or any other state or territory, or of the United States, 
is required to pay this tax. Shares of the capital stock 
of national banks, not located in the state, but held 
in this state, are not subject to tax. This tax is col¬ 
lected by the county treasurer, who pays the state’s 
share to the state treasurer.' 3 This tax is distributed 
among the different governmental units in the same 
way as is the general property tax, i. e., according to 
the levy made by each. 

TAX ON CORPORATIONS 

This is the regular ad valorem tax as applied to cor¬ 
porations. Corporations are assessed upon the value of 
their moneyed capital, surplus and undivided profits. 
“Moneyed capital” includes the money actually invested 
in the business of the corporation, whether represented 
by certificates of stock, debentures or bonds. This tax 
is paid by all corporations organized in the state for 
profit, other than public service corporations assessed 
by the state board of equalization, national banks, 
state banks and trust companies. This tax is distributed 
among the different governmental units in the same 
way as is the general property tax. 34 

33 S. L. 1910, ch. 203. as amended by S. L. 1921, eh. 94. 

84 S. L. 1919, Ch. 203. 



320 


Government of Oklahoma 


PUBLIC UTILITY TAX 

This is the regular ad valorem tax as applied to 
public service corporations organized, existing or doing 
business in the state. The state board of equalization 
makes the assessment upon all property of public utility 
corporations “at its fair cash value, estimated at the 
price it would bring at a fair voluntary sale.” The 
state board of equalization causes the state auditor 
to certify this value to the county clerk of each and 
every county in which any portion of the public utility 
is located. This return shows the various portions of the 
property located in and taxed by each county and each 
city, town, township, school district or other municipal 
subdivision of the state. This certification must be made 
on or before the first Monday of May of each year. 
The certified value of the property in each of these 
subdivisions of the state is subject to the levy made 
upon all property in that subdivision. This tax is dis¬ 
tributed the same as the general property tax, i. e., 
according to the levy made by the state and each sub¬ 
division thereof. 35 38 

35 R. L. 1910, Sees. 7336 to 7350. 

36 Sec. 12a of Art. X of the Constitution, adopted iat an elec¬ 
tion held August 5, 1913, provided that: “All taxes collected for the 
maintenance of the common schools of this State, and which are levied 
upon the property of any railroad company, pipe line company, tele¬ 
graph company, or upon the property of iany public service corpora¬ 
tion which operates in more thian one county in this State, shall be 
paid into the Common School Fund and distributed as are other com¬ 
mon school funds of this, state.” This section has not been vitalized 
by the legislature, and since the courts have held that it was necessary 
to vitalize It by legislative enactment before it became effective (Lin- 
thicum, County Treasurer, v. School District No. 4, Choctaw Co., 490 
Okla., 48, 149 Pac. 898), the old method provided for the distribution 
of this tax is still in effect. 



Taxation and Revenue System 


821 


CRITICISM OF THE PUBLIC UTILITY TAX 

The chief objection to this tax is in the difficulty 
of determining what is the “fair cash value” of these 
utilities. By law, the utilities are required to furnish 
to the state board of equalization statements as to their 
financial resources. The statements made by these com¬ 
panies are not conclusive, however, upon the board of 
equalization, the board having power to examine books, 
records, etc., and to compel the attendance of witnesses, 
officers and agents. It should be perfectly manifest 
to anyone who has given the subject a moment's con¬ 
sideration that the state board of equalization is not 
a proper body for assessing these utilities. It has no 
expert staff of engineers and accountants to determine 
what the actual values are, and therefore must de¬ 
pend almost entirely upon the statements turned in by 
the companies or the statements made by their officers. 
While, undoubtedly, several factors are taken into ac¬ 
count, such as capital stock, bonded indebtedness, total 
revenue, net revenue, interest, and dividends, an ex¬ 
amination made by the author, of some sixty odd gas 
and electric company valuations, would seem to show 
that there is no definite method of estimating the rela¬ 
tive values of any or all of these factors. A cursory 
glance at the assessment placed on different plants 
would seem to indicate that the company with the best 
lawyers and the greatest importunity receives the low¬ 
est valuation on its property for the purpose of assess¬ 
ment. 

To better the present condition, instead of hav¬ 
ing the utilities assessed by the state board of equali¬ 
zation, the work should be done by a state tax com¬ 
mission, the merits of which are discussed later. In the 


322 


Government of Oklahoma 


absence of a state commission it would seem as though 
the corporation commission, having at its disposal staffs of 
accountants and engineers, should be the authority to de¬ 
termine what the value of the tangible property is. A much 
closer relationship between the rate-making body and the 
assessing body would seem to be necessary. 

REAL ESTATE MORTGAGE TAX 

This is a registration tax upon mortgages and is in 
lieu of the regular ad valorem tax. The rate is based 
upon the length of the term of the mortgage, and is as 
follows: 1. A tax of ten cents for each $100 and 
each remaining major fraction thereof where the mort¬ 
gage is for five years. 2. A tax of eight cents for 
each $100 and each remaining major fraction thereof, 
where the mortgage is for four years and less than five 
years. 3. A tax of six cents for each $100 or major 
fraction thereof for mortgages of three years and less 
than four years. 4. A tax of four cents on each $100 
or major fraction thereof, where the mortgage is for 
two years and less than three years. 5. A tax of two 
cents for each $100 where the mortgage is for less than 
two years. 6. If the principal of the debt is less than 
$100, a tax of ten cents is imposed. This tax is paid to 
the county treasurer by all corporations and individuals 
recording mortgages, and is distributed in the same 
way as is the ad valorem tax. 37 

GASOLINE EXCISE TAX 

The 1923 legislature (S. L., Ch. 239) provided for an 
excise tax of one cent per gallon on each and every gallon 
of gasoline consumed in the state. The tax is collected 


37 Bunn, Supp. Sec. 77306, a to 1. 



Taxation and Revenue System 323 

from the consignees of gasoline. The consignees of all 
inspected gasoline on or before the fifteenth day of each 
month file with the state auditor a report under oath 
showing the number of gallons received by them during 
the preceding calendar month, and pay the tax. This 
report is checked up by the oil inspectors and their de¬ 
puties. A refund is made where the gasoline is transport¬ 
ed out of the state. A penalty of 18 percent interest is 
provided in case of delinquency of payment. 

The revenue from this tax is placed in the state high¬ 
way fund and is apportioned by the commissioner of high¬ 
ways to each county in the state, in the percentage which 
the present approved state highway mileage within the 
county bears to the present approved state highway mile¬ 
age in the state. After being thus apportioned, the money 
is placed in the state highway construction and mainten¬ 
ance fund in the county, to be used by the commissioners 
for the purpose of constructing and maintaining state 
highways and bridges under the direction of the state com¬ 
missioner of highways. 

THE GROSS PRODUCTION TAX 

The gross production tax consists of (a) a tax of one- 
half of one per cent of the gross value produced, less 
the royalty interest, of asphalt, and of ores bearing lead, 
zinc, jack, gold, silver and copper; (b) three per cent of 
the gross value of the production of petroleum or other 
crude or mineral oil and of natural gas, less the royalty 
interest. This tax is in lieu of all other taxes, state and 
local. The owner of the royalty also pays a tax, unless 
his interest is expressly exempted from taxation. This 
tax is collected by the auditor, who prescribes forms for 
reports, requires information, examines books, records 


324 Government of Oklahoma 

and witnesses, and brings suits for the recovery of the 
tax. 

Two-thirds of the money collected from this tax goes 
to the general fund, while the other third goes to the 
county in which the mineral or oil was produced, where 
it is distributed one-half to the common school fund and 
one-half to the county road and bridge fund. 38 

A law of 1923 (Ch. 197) provides that school districts 
in the state in which lead and zinc or other minerals are 
mined on Indian lands exempt from the ad valorem tax, 
which make the maximum legal levy for school purposes, 
shall be entitled to receive a sum from the gross production 
tax, which, added to the total revenue accruing to the 
district from taxation and other sources in the given fiscal 
year, will equal the estimated needs of the school district 
for the fiscal year. In no event may the estimated needs of 
the school district exceed $35 per child enrolled. The bene¬ 
fits of this tax are not to exceed the total sum of the gross 
production tax collected by the state auditor from the 
county. 

THE GRADUATED INCOME TAX 

The graduated income tax is an annual tax upon all 
net incomes in excess of $3,000, graduated according to 
the amount of income as follows: (a) the first $10,000 
of excess, seven and one-half mills on the dollar; (b) on 
the next $15,000 of excess, or any part thereof, fifteen 
mills on the dollar; (c) on all excesses in addition to 
these amounts twenty mills on the dollar. Certain de¬ 
ductions from income are allowed, as follows-: (a) ex¬ 
pense of business, not including personal, living or 
family expenses; (b) interest; (c) taxes, except special 


38 S. L. 1916, ch, 39. 



Taxation and Revenue System 825 

benefit assessments; (d) losses not compensated for by 
insurance; (e) worthless debts; (f) reasonable depre¬ 
ciation. This tax is paid by persons, but not by cor¬ 
porations. 39 Mr. C. W. King, assistant attorney gen¬ 
eral of Oklahoma, criticises this feature of the law 
quite severely. He says: 

“This method has proven defective in that it is next 
to impossible of enforcement, being commonly evaded in 
three ways: First, by corporations’ refusal to declare and 
distribute dividends, re-investing the earnings of the 
corporation throughout a period of years, then claiming 
exemption from income taxation upon the ground of 
‘converted capital.’ Second, by declaring what is known as 
‘stock dividends,’ i. e., additional stock instead of cash to the 
amount of the dividend to which the share holder would be 
entitled. Third, when the business assumes large propor¬ 
tions, the principal stockholders, by removing their legal 
residence to another state gain the exemption enjoyed by 
non-resident stockholders—the taxable situs of the stock and 
its dividends being that of the domicile of the owner. Many 
examples of the latter class may be pointed to and in¬ 
clude a number of Oklahoma’s pioneer citizens and builders 
who had rather reside in Oklahoma than any other state. 

“In the opinion of the writer, gained from long ex¬ 
perience in tax litigation, the only practical remedy for 
the above situation is for the income tax act to be 
amended to include corporations, then to avoid double 
taxation, the dividends of shareholders should be ex¬ 
empted, the tax thereon having been paid by the cor¬ 
poration. 

“The so-called stock dividends should be included 
within the meaning of the term ‘income’ for taxation 

39 S. L. 1915, Ch. 164, and S. L. 1917, Ch. 265. 



326 


Government op Oklahoma 


purposes, as well as any other method of distribution 
of the surplus earnings of the corporation as a substi¬ 
tute for dividends. ,,4 ° 

This tax is collected by the auditor, who furnishes 
blanks, makes all rules and regulations, revises the re¬ 
turns and corrects and adjusts assessments. The tax 
becomes due and payable the first day of June and be¬ 
comes delinquent the first day of the next July. The 
tax goes into the general fund. If the legislature 
would give to the auditor’s office a larger force for the 
collection of this tax, the revenue derived from it could 
undoubtedly be increased to a very great extent. 

GRADUATED INHERITANCE TAX 

This is a transfer tax on property or beneficial inter¬ 
est therein or income therefrom on all transfers to any 
person or corporation other than those especially ex¬ 
empted. Two main classes ot those receiving inheri¬ 
tances are provided by law; viz., near relatives, and 
other persons. The rates for each of these classes are 
given in a footnote . 41 This tax is administered by sev- 

40 Harlow’s Weekly, Dec. 3, 1920, p. 16. 

41 S. L. 1919, Cli. 296, Secs. 3 nnd 4. These sections read as fol¬ 
lows : 

“Tax Rate—Near Relatives. 

Section 6. Upon a transfer taxable under this Act, of property 
or any beneficial interest therein, of an amount, as hereinafter stated, 
to any father, mother, husband, wife, child, brother, sister, wife or 
widow of a son or husband of a daughter, or any child or children 
adopted as such in conformity with the laws of this State, of the 
decedent, grantor, vendor, or donor, or to any child to whom any 
such decedent, grantor, vendor, or donor for not less than ten (10) 
years prior to such transfer stood In the mutually acknowledged 
relation of parent; provided, however, such relationship began at 
or before the child’s fifteenth birthday, and was continuous for said 
ten (10) years thereafter, or to any lineal descendant of such de 
cedent, grantor, vendor, or donor, born in lawful wedlock, the tax 



Taxation and Revenue System 


327 


eral state authorities. The county court hears and de¬ 
termines all questions arising under the law and deter¬ 
mines the amount of the tax. The county court, upon 
the application of an interested party, including the 
state auditor, the attorney general, the county attor¬ 
ney, or upon his own motion, may appoint an appraiser 
to fix the market value. Promulgation of rules and reg¬ 
ulations is in the hands of the state auditor. The com¬ 
missioner of insurance computes contingent estates, 
while the state examiner and inspector inspects rec¬ 
ords of the county court to see in what cases the tax is 
or may be due. The tax is collected by the state audi¬ 
tor. The state auditor may, with the consent of the 
attorney general, contract with any licensed attorneys 

on such transfer shall he at the rate of: 

“One percent (1%) on any amount up to land including the sum 
of Twenty-five Thousand Dollars ($25,000.00). There shall he exempt 
from any tax hereunder: to the wife, Fifteen Thousand Dollars 
($15,000.00) ; to each child of the decedent, Ten Thousand Dollars 
($10,000.00), and to each other relative mentioned above Five Thous¬ 
and Dollars ($5,000.00) except to any brother, Sister, wife or widow 
of a son, or the husband of a daughter, there shall be exempt One 
Thousand Dollars ($1,000.00.) 

"Two percent (2%) on any amount in- excess of Twenty-five 
Thousand Dollars ($25,000.00) up to and including the sum of Fifty 
Thousand Dollars ($50,000.00), except to any brother, sister, wife or 
widow of a son, or the husband of a daughter, the rate shall be four 
per cent (3%). 

"Three per cent (3 °fr) on any amount in excess of Fifty Thous¬ 
and Dollars ($50,000.00) up to and including the sum of One Hundred 
Thousand Dollars ($100,000.00) except to any brother, sister, wife or 
widow of a son 1 , or the husband of a daughter, the rate shall be four 
per cent (4%). 

“Four per cent (4%) on any amount in excess of One Hundred 
Thousand Dollars ($100,000.00) except to any brother, sister, wife, 
or widow of a son, or the husband of a daughter, the rate shall be 
five per cent (5%).” 

“Other Persons.” 



328 


Government of Oklahoma 


to collect inheritance taxes due the state from the es¬ 
tate of non-resident decedents and certain others at a 
commission of not more than 8 per cent. 42 The tax, less 
the expense of its collection, becomes a part of the general 
fund of the state. 43 

TAX ON TRANSPORTATION AND TRANSMISSION COMPAKfES 

This is a tax of 4 per cent upon the gross receipts of 
transportation and transmission companies operating in¬ 
terstate lines, from which are exempted steam railroads, 
street railroads, parlor and sleeping car companies, pipe¬ 
line companies and telephone companies. 44 All trans¬ 
mission and transportation companies, except the ones 
above mentioned as being exempted, pay this tax. The 

- i 

42 S. L. 1917, Ch. 267. 

43 S. L. 1915, Ch. 162, Sec. 26. 

^S. L. 1915, Ch. 107, Subdivision B. 


“Upon a transfer taxable under this Act, of property or any 
beneficial interest therein of an amount in excess of Five Hundred 
Hollars ($500.00) to any person or corporation other than those 
enumerated in Section Six, the tax shall be at the rate of: 

“Six per cent (6%) on any amount in excess of Five Hundred 
Dollars ($500.00) up to and including the sum of Twenty-five Thous¬ 
and Dollars ($25,000.00) ; 

“Seven per cent (7%) on any amount in excess of Twenty-five 
Thousand Dollars ($25,000.00) up to. and; including the sum of Fifty 
Thousand Dollars ($50,000.00) ; 

“Eight per cent (8%) on any amount in- excess of Fifty Thous¬ 
and Dollars ($50,000.00) up to and including the sum of One Hundred 
Thousand Dollars ($100,000.00) ; 

“Ten per cent (10%) on any amount in excess of One Hundred 
Thousand Dollars ($100,000.00). 

“Provided, that the exemptions mentioned in tMs Chapter when 
one or more shares of an estate shall consist of property within and 
property without the State, only such percentage of the exemptions 
named in this Act shall be allowed as is the percentage within the 
State of the total value of the shares.” 




Taxation and Revenue System 329 

exemptions really reduce this tax to a tax on private car 
and telegraph companies. 

The gross receipts are determined by the state audi¬ 
tor from information furnished him by the companies 
subject to the tax, after which he makes the levy of 
the tax. The state auditor also collects this tax. The 
revenue derived from this tax goes into the general 
fund. 

CORPORATION LICENSE TAX 

This is an annual license tax of fifty cents per one 
thousand dollars on the authorized capital stock of do¬ 
mestic corporations, and one dollar per thousand dollars 
on the authorized capital stock employed in business in 
the state of foreign corporations. Public utility com¬ 
panies, banking or trust companies, building and loan 
associations, insurance companies, and non-profit com¬ 
panies are exempted from this tax. Licenses are is¬ 
sued by the corporation commission, with whom also 
are filed the statements of these companies. By law, 
the state treasurer is supposed to collect this tax, but 
in practice it is collected by the corporation commis¬ 
sion. This tax is payable on or before the first day of 
August of each year and goes into the general fund of 
the state. 45 It was held in the case of Leecraft vs. Texas 
Company (281 Federal, 918) that when a foreign corpora- 
ion was doing business in the Indian Territory at the time 
of the admission into the union of the state of Oklahoma, 
and thereafter continued for more than three years prior 
to the enactment of the statute described above, and had 
expended large sums in permanent improvements within 
the state, the levy of license tax higher than that demand¬ 
ed of domestic corporations is a failure to provide equal 


48 R. L. 1010, Secs. 7538 to 7546. 



330 


Government of Oklahoma 


protection of the law, as demanded by the fourteenth amend- 
ment to the Federal Constitution. It might possibly 
be expedient to amend this measure so that the same tax 
may be levied on both domestic and foreign corporations. 

THE MOTOR VEHICLE TAX 

This is an annual tax on all motor vehicles in the 
state and is in lieu of all other taxes. The tax is as 
follows: 

a. $10.00 for each automobile and motorcycle, the 
manufacturer’s list price of which equals $500.00 or less, 
with an additional tax of $0.75 for each additional 
$100.00 in value, or major fraction thereof. 

b. Motor trucks are taxed as follows: 1500 lbs. or 

less carrying capacity, $15.00 per annum; from 
1500 lbs. to 2000 lbs., $20.00; from 2000 lbs. to 3000 

lbs., $25.00; from 3000 lbs. to 4000 lbs., $40.00; from 

4000 lbs. to 6000 lbs., $60.00; from 6000 lbs. to 8000 

lbs., $100.00; from 8000 lbs. to 10,000 lbs., $300.00. 
The fee is reduced twenty per cent each year for three 
years on all motor vehicles other than motor trucks of 
five tons or more capacity, which shall have been li¬ 
censed two consecutive years, but shall never be less 
than $10.00 per annum. 

The department of highways receives applications for 
registration of such vehicles, assigns registration num¬ 
bers, and furnishes the applicant with identification and 
number plates, in addition to collecting the tax. This 
tax (except the fees on the duplicate tags) is distribut¬ 
ed as follows: 10 per cent goes to the general revenue 
fund of the state; 90 per cent goes to the county from 
which it was paid in, and is there distributed as follows: 
(a) 25 per cent of the moneys collected from cars or 
vehicles in cities or incorporated towns, goes to the 


Taxation and Revenue System 


331 


street and alley fund, (b) one-half of the residue goes 
to the county road maintenance fund, and (c) the re¬ 
mainder goes to the credit of the state highway con¬ 
struction fund of the county. 46 

In addition to the regular taxes imposed upon motor 
vehicles, motor carriers are required to pay one-fifth of a 
cent per mile “on the distance traveled while engaged in 
the carriage of passengers or freight * * * the mileage to 
be determined on the basis of the number of trips schedul¬ 
ed per day and computed on the basis of thirty days per 
calendar month, regardless of whether the vehicle carrier 
out its schedule.” The moneys thus collected by the state 
highway department are pro-rated among the counties of 
the state in proportion to the number of miles of public 
highway used by the taxed motor carriers in each county. 
The funds are used for the construction and maintenance 
of the highways of streets over which the carriers operate, 
(S. L. 1923, Ch. 113.) 

FIRE MARSHAL TAX 

This is a tax of one-fourth of pne per cent on gross 
fire insurance premiums. It is paid by all fire insurance 
companies to the insurance commissioner. This tax 
goes to the state fire marshal fund and is used for the 
expenses of conducting the state fire marshal’s depart¬ 
ment. Any excess over these expenditures is turned 
into the general fund. 47 

TAX ON PREMIUMS OF FOREIGN LIFE INSURANCE COMPANIES 

This is an annual tax on premiums collected in the 
state, of two per cent of gross premiums less cancella¬ 
tions and dividends paid in cash. It is paid by all for¬ 
k’s. L. 1919, Ch. 290. 

"Bunn, Supp., Sec. 8124m. 



332 Government of Oklahoma 

eign life insurance companies to the insurance commis¬ 
sioner on or before the last day of February of each 
year. The insurance. commissioner pays it into the 
general fund . 48 

TAX ON PREMIUMS OF FOREIGN FIRE INSURANCE COMPANIES 

This is an annual tax of two per cent on gross pre¬ 
miums of foreign fire insurance companies less return 
premiums and reinsurance. It is paid by all foreign fire 
insurance companies to the insurance commissioner on 
or before the last day of February of each year. The 
insurance commissioner pays it into the general fund. 

CRITICISM OF THE TAXATION SYSTEM 

From the cursory description which we have given 
of the taxation system of the State of Oklahoma, it can 
be readily seen that the system is lacking in most of the 
requisites necessary for just and efficient taxation. 
Taxes are administered and collected by many agencies 
having no relationship to one another. Valuations of 
real estate are made on no scientific basis; no proper 
methods are used in the assessment of property; per¬ 
sonal property escapes assessment almost altogether; 
the assessment of public utilities is almost a farce. Man¬ 
ifest injustice is created by such a system as is now in 
vogue, the burden of the tax being thrown very largely 
upon lands and unproductive property such as household 
belongings. Administration of the general property 
tax by local authorities has made for inefficiency and 
political corruption. To remedy these defects, it is sug¬ 
gested : 

"R. L. 1910, Sec. 3426. 

4 Tbid. 



Taxation and Revenue System 


333 


(A) . That a state tax bureau or commission be 
created within the proposed finance department discus¬ 
sed in chapter IV. This should be appointed for a fair¬ 
ly long term, thus securing stability of tenure. Salaries 
should be large enough to attract able men, and none of the 
members of this bureau should be “ex officio”. 

(B) . This bureau should have under its direct 
control and supervision all of the taxation of the state. 

(C) . This bureau should appoint or have under 
its control all local assessors. All assessors should be 
required to pass a strict civil service examination. 

(D) . All equalization of taxation between individuals 
or taxing districts should be made by this bureau. 

(E) . A careful system of administrative rules and 
regulations, as well as methods for valuing property, 
should be worked out by the bureau, and should be 
adopted by law and be made uniform throughout the 
state. 

(F) . Uniform systems of accounting and auditing for 
public officers should be introduced, and much more 
careful attention should be paid by the central authorities 
to questions of the budgets of all municipal and local sub¬ 
divisions of the state. 

REVENUES DERIVED FROM SOURCES OTHER THAN TAXATION 

Beside the taxes described above, the state derives 
considerable revenue from privilege fees, particularly 
those required of foreign corporations, fees collected by 
the secretary of state for the incorporation of companies, 


334 


Government of Oklahoma 


and charges for services rendered by the various depart¬ 
ments of the state . 50 

THE CUSTODY AND DISBURSEMENT OF STATE MONEY 

The state treasurer is designated by law as the offi¬ 
cial depository “for all moneys, funds, rentals, penal¬ 
ties, costs, proceeds of sale of property, fees, fines, for¬ 
feitures, and public charges of every kind that may be re¬ 
ceived by any state officer, state board, state commission, 
or by any employee of either of such officers, boards or 
commissions by virtue or under color of office.” It is the 
duty of each and every state officer, state board, state 
commission, and all members or employees thereof to 
deposit daily with the official depository “all moneys, 
checks, drafts, orders, vouchers, funds, rentals, penal¬ 
ties, costs, proceeds of sale of property, fees, fines, for¬ 
feitures and public charges of every kind received or 
collected by virtue or under color of office.” These 
moneys when so received by the state treasurer are de¬ 
posited by him daily in banks designated and qualified 
as depositories, where they draw interest at a rate of not 
less than three per cent per annum on average daily bal¬ 
ances. This interest must be paid by the depository 
monthly and when collected is credited to the funds or 
accounts earning the same. 

The governor, the attorney general, and the state 
treasurer, are authorized and directed to select the 
banks acting as depositories. All moneys deposited in 
the official depository are credited to the account of the 
officer, board, commission or employee thereof so de- 

w For a complete description of these revenues see, F. F. 
Blachly, The Financial System of the State of Oklahoma, University 
of Oklahoma Bulletin. New Series No. 208, January 15, 1921, Ap¬ 
pendix 1. 



Taxation and Revenue System 


335 


positing the same; and there may be withdrawn into the 
state treasury only such parts as may be due the state 
or its funds or funds under its management “and in re¬ 
fund of erroneous or excessive collections and credits and 
in payment of legal claims and charges against any trust 
deposit or fund included in any such account.” All with¬ 
drawals of money from the depository are made upon the 
voucher of the authority making the deposit. This 
voucher must show on its face, the character of the claim 
liquidated or the fund or funds to which the money is 
transferred in the state treasury. When redeemed, 
these vouchers are delivered monthly to the state audi¬ 
tor and receipted for by him. Official depository vouch¬ 
ers, when presented for redemption to the state treas¬ 
urer, are registered for payment by him by his writing 
his official signature as custodian of the official deposi¬ 
tory and designating on the face of the voucher the bank 
through which it may be paid. This voucher, when so 
registered, becomes an official draft of the state treas¬ 
urer on the designated bank. 

All moneys received during any calendar month by 
any state officer, board, etc., accruing as a part of the 
state’s general revenue or any other appropriated fund, 
are transferred from the official depository to the fund 
or funds in the state treasury to which they belong, by 
the receiving authority on or before the second Monday 
following the close of the calendar month in which such 
moneys have been received. All receiving officers must 
make and file with the state auditor, on or before the 
second Monday in each month, a verified report, in 
writing, showing the several sources, classes and amounts 
of money received by them during the preceding calen¬ 
dar month, as well as an itemized statement of the 


cS36 Government of Oklahoma 

amount and purpose of each of the several disburse¬ 
ment or transfer vouchers. 51 

Let us summarize as briefly as possible the official 
depository law. In the first place, all revenues from 
whatsoever source derived are deposited in the banks 
designated as official depository banks to the credit of 
the state treasurer. The state treasurer, upon receiv¬ 
ing notice of these deposits, credits the officer, board, 
commission, etc., with the amount. The money in the of¬ 
ficial depository is withdrawn in three main ways. First, 
that money whch does not belong to the general revenue 
fund, or an appropriated fund, is paid out upon vouchers 
of the authority making the deposit. When registered 
by the state treasurer, they act as a check upon the 
bank designated on the face of the voucher by the treas¬ 
urer. Second, money which is not disbursed by the re¬ 
ceiving officer, but which goes to some fund from 
which appropriations are not made by the legislature, 
but control over which is in the hands of a board, offi¬ 
cer, commission, etc., is transferred from the credit of 
the officer, board, or commission, to that particular 
fund. Such funds, however, are held in the official de¬ 
pository instead of being transferred to the state treas¬ 
ury. Third, all money belonging to the general revenue 
fund, or any other appropriated fund, is transferred 
monthly to the state treasury, where it is paid out upon 
warrants issued upon the state treasurer by the state 
auditor. The state auditor only issues these warrants 
after approving the payment vouchers sent him by state 
boards, officers, commissions, etc. 

This rather complex system of custody and disburse¬ 
ment of the state’s money is due to two main causes. 


l S. L. 1915, Oh. 238. 



Taxation and Revenue System 


337 


First, having a great many particular funds for specific 
purposes; and, second, the fact that all money spent in 
the state, for every purpose whatsoever, is not under the 
control of the legislature, but a considerable portion of 
it is under the control of boards, officers and commis¬ 
sions. 

To change this system, it would be necessary to abolish 
many of the present funds. The revenue that now is re¬ 
ceived into these funds would then be paid directly into 
the state treasury to the credit of the general fund. 
Money to meet the expenditures now paid from these 
funds should be appropriated directly by the legislature. 

The 1923 legislature has made provision for a tax code 
revision commission (S. L. Chapter 222) consisting of three 
members appointed by the governor, one of whom shall be 
the state examiner and inspector. This commission is giv¬ 
en authority to employ experts from among recognized 
authorities. The commission is charged with the duty of 
making a comprehensive survey of the revenue and taxation 
system of the state. It is required to make a report of 
its findings to the governor on or before September 1924, 
“together with the statutory and constitutional enactments 
putting the same in force; and shall prepare a detailed and 
comprehensive report on the same, including a tax code for 
this state. The commission shall in its report include speci¬ 
fically the statutory and constitutional enactments neces¬ 
sary to put such a tax code into effect, and shall recommend 
the passage and enactment of the same.” 


CHAPTER X. 


THE FUNDS OF THE STATE 

Oklahoma, following the example of many of the 
other states of the Union, carries on its financial opera¬ 
tions through a series of funds. At present Oklahoma 
has divided its revenues into some eighty separate funds, 
each one of which, with the exception of the general 
fund, is applicable to some definite purpose and no 
other. Perhaps the best way of examining the funds of 
the state is to classify them into three groups: 

I. Funds from which the legislature may appropriate 
for any purpose. 

II. Funds which the legislature has established for a 
specific purpose. 

III. Funds which the legislature has little or no power 
to change, to control, or to appropriate from; because 
of conditions laid down by the national government or 
restrictions embodied in the constitution of the state. 

I. FUNDS FROM WHICH THE LEGISLATURE MAY APPROPRIATE 
FOR ANY PURPOSE 

There is only one fund in the state which the legisla¬ 
ture uses for general appropriation purposes. This is the 
general fund. Many specific revenues flow into this 
fund, as well as all those revenues not definitely allocat¬ 
ed to other funds. Out of this fund are paid all the 
expenses of state government which are not by law 
paid out of some particular fund. The principal receipts 
of this fund consist in the state’s share of the general 
property tax, the motor vehicle t$x, the express company 
tax, the bank stock tax, the corporation tax, the public 

33S 


Funds op the State 


339 


utility tax, the real estate mortgage tax, and the gross 
production tax. This fund also receives all the gradu¬ 
ated income tax, the graduated inheritance tax, the tax 
on transportation and transmission companies, the cor¬ 
poration license tax, and the tax on premiums of foreign 
fire and life insurance companies. In addition, this 
fund receives a large amount of money from fees, 
charges and licenses of various state departments and 
officers, such as the secretary of state, the insurance 
commissioner, the commissioners of the land office, 
etc. The interest on daily balances, as well as interest 
on money held in the official depository, is likewise paid 
into this fund. 

II. FUNDS WHICH THE LEGISLATURE HAS ESTABLISHED FOR 
A SPECIFIC PURPOSE 

Within this main group may be included the following 
classes of funds: 

A. Revolving Funds. 

B. Working Capital Revolving Funds. 

C. Pension Funds. 

D. Guaranty Funds. 

E. Home Loan Funds. 

F. Funds Derived from Licensing, Examining and 
Regulating. 

G. Free Scholarship and Text-book Funds. 

H. Agency Funds. 

I. Sinking Funds. 

REVOLVING FUNDS 

The first class of funds established for a specific pur¬ 
pose consists in a great many so-called revolving funds. 
In fact, a revolving fund is established for almost every 
institution in the state. These funds ordinarily consist 


340 


Government of Oklahoma 


of a small appropriation made by the legislature, earn¬ 
ings and profits of state institutions, such as hospitals, 
etc., and rentals of musical, scientific and engineering 
instruments under the control of educational institutions. 
They are used, as a rule, for the purchase of materials, 
equipment, books, apparatus, supplies, repair of instru¬ 
ments, purchase of live stock, or the payment of minor 
salaries . 1 

There is considerable difference of opinion in respect 
to the advisability of having revolving funds for state in¬ 
stitutions. Those arguing in favor of them maintain 
that: (a) In many instances receipts from certain 

'These different funds are: University of Oklahoma Revolving 
Fund; University Hospital Revolving Fund; Panhandle Agricultural 
School Revolving Fund: Home for the Aged and Infirm Revolving 
Fund; Murray Agricultural School Revolving Fund; Connor Agricultu¬ 
ral School Revolving Fund; Cameron Agricultural School Revolving 
Fund; State Training School Revolving Fund; Oklahoma Geological 
Survey Revolving Fund; School for the Blind Revolving Fund; School 
for Deaf Revolving Fund: Oklahoma College for Women Revolving 
Fund; Oklahoma State Hospital Revolving Fund; West Oklahoma Or¬ 
phan’s Home Revolving Fund; Oklahoma Hospital for the Insane Re¬ 
volving Fund ; East Oklahoma Hospital for the Insane Revolving Fund ; 
Oklahoma Institute for the Feeble-Minded Revolving Fund; Oklahoma 
State Home Revolving Fund; State Institute for Deaf. BMnd and 
Colored Orphans Revolving Fund; Northeastern State Normal Re¬ 
volving Fund; Southeastern State Normal Revolving Fund; East 
Central State Normal Revolving Fund; Northwestern State Normal 
Revolving Fundi; Central State Normal Revolving Fund; Southwes¬ 
tern State Normal Revolving Fund; Oklahoma State Business Acad¬ 
emy Revolving Fund; Oklahoma Mfilitaiy Academy Revolving Fund; 
School of Mines and Metallurgy Revolving Fund. 

All these revolving funds were established by S. L. 1917. Gli. 227. 

Agricultural and Mechanical College Revolving Fund. This fund 
was established by S. L. 1917, Ch. 227, as amended by S. L. 1919, 
Ch. 239. 

Supreme Court Revolving Fund. This fund was established by 
S. L. 1917, Ch. 134. 

State Tubercular Sanitoria Revolving Funds were established by S. 
L. 1923. ch. 89. 



Funds of the State 


341 


branches or departments of the institution are almost 
proportionate to the expense of carrying on the work. 
For instance, in caring for patients in hospitals where a 
charge is made, the receipts and expenses should nearly 
balance each other; the greater the expense, therefore,' 
the greater the receipts. In the case of laboratory fees, 
the expenses are almost directly proportionate to the re¬ 
ceipts. It is better, therefore, to provide a fund into 
which these various receipts can go and be paid out for 
carrying on the activities, than it is to make an appro¬ 
priation which, at best, would be only guess work and 
might be either too large or too small, (b) In the second 
place it is maintained that by having a revolving fund, 
an institution has considerably more leeway in the oper¬ 
ation of its affairs than if a hard and fast appropriation 
were fixed by the legislature for the carrying on of minor 
enterprises. Since it is never possible for an executive to 
plan ahead with absolute exactness, some such method 
should be provided for adjusting the finances 
to actual conditions, (c) In the third place, since these 
receipts are, as a rule, either for services rendered or 
material supplied by the institution, they should be used 
by the institution immediately in paying for these ser¬ 
vices or paying for materials. 

A good many arguments are advanced, likewise, 
against revolving funds, (a) In the first place the re¬ 
volving fund system necessitates the keeping of many ac¬ 
counts by the state examiner and inspector, and state 
auditor, and the state treasurer, as well as by the in¬ 
stitutions having these funds, thus requiring a much 
larger clerical force than would otherwise be necessary, 
(b) In the second place, having such funds quite inde¬ 
pendent from control by legislative appropriation makes 
it difficult to form a scientific budget. In order to pre- 


342 


Government op Oklahoma 


pare a budget which is both complete and clear, all ex¬ 
penditures of every sort should be placed in the budget 
estimate and should be appropriated for by the legisla¬ 
ture. If fees are charged, they should all be paid into* 
the general fund, and expenses in connection with the 
furnishing of services or materials for which there is a 
charge should be met out of a definite appropriation 
for these purposes. The doing away with these funds 
would simplify accounting, would make possible a bud¬ 
get giving a truer picture of the expenditures of the 
state, and would give the legislature more actual control 
over state finance. 

Until such a time, however, as the state budget sys¬ 
tem has been put upon a sure and permanent basis, it 
may be well to continue these revolving funds; for un¬ 
less some sort of contingent appropriation were made to 
each institution which its executive officers could use 
more or less as an adjustment account, great hardship 
might result. 

WORKING CAPITAL REVOLVING FUNDS 

There are three such funds: The State Binder Twine 
Revolving Fund, the State Prison Revolving Fund, and 
the Oklahoma State Reformatory Revolving Fund. 

The capital of the state binder twine revolving fund con¬ 
sists in appropriations made in 1916 and 1917, totaling 
$325,000, for the establishing and maintaining of a binder 
twine plant in the state penitentiary at McAlester. The 
increments to this fund consist in the proceeds of 
the sale of twine, cordage and cotton or jute bagging. 
The fund is used for the maintenance and operation of 
the plant, the purchase of raw materials, the carrying, 
handling and marketing of manufactured products, and 
the compensation of those engaged in the management 


Funds of the State 


343 


and operation of the plant. The state board of affairs 
provides for the organization, operation, management 
and control of the binder twine revolving fund. This 
fund is expended under the supervision of the governor 
and the state board of affairs. 2 

Undoubtedly this fund is not as much under the con¬ 
trol of either the auditor or the legislature as it should 
be. The money is expended from this fund not by 
means of appropriations, but under the supervision of 
the governor and the state board of affairs. This 
means that a relatively large amount of the state’s 
money is under no adequate supervision by the legis¬ 
lature. Nor are payments from this fund under scrutiny 
of the auditor, as are most of the other state expendi¬ 
tures. It would seem advisable to abolish this fund, to 
make an annual appropriation for conducting this in¬ 
dustry, and to turn all the receipts from this industry 
into the state treasury to the credit of the general fund. 

The capital of the Oklahoma state prison revolving 
fund and that of the Oklahoma state reformatory revolving 
fund consist in appropriations made for this purpose, and of 
all net earnings and the net profits of all business enter¬ 
prises, occupations factories, shops, farms, etc., operated 
by the institutions using the funds. These funds are used 
for the purchase of materials, live stock, appliances and 
so forth, needed in the conduct of these industries. These 
funds are under the control of the state board of affairs. 
Emergency expenditures are made from these funds by 
the state board of affairs with the consent of the gov¬ 
ernor. 

With the approval in writing of the governor, a part 
of either of these funds may be used for carrying on an 

2 S. Jj . 1910, Ch. 40.: S. L. 1917, Oh. 44. 


344 


Government of Oklahoma 


enterprise, authorized by law, other than that business 
or industry from which it was derived. Itemized finan¬ 
cial statements must be made each month to the gov¬ 
ernor. These funds are placed in the state depository, 
and are paid out on vouchers bearing the verification of 
the state board of public affairs’ chairman, or vice- 
chairman, and secretary. These vouchers must also 
bear the signature of the warden, first deputy warden 
and the chief clerk of the prison for which such re¬ 
volving fund is created. 3 

These funds are subject to the same criticism that is 
made of the institutional revolving funds. 

PENSION FUNDS 

The two pension funds which the State of Oklahoma 
has established are the firemen’s relief and pension 
fund and the Oklahoma state teachers’ retirement and 
disability fund. Both of these funds are badly planned. 

1. The Firemen’s Relief and Pension Fund. 

The increments to this fund consist of one-half the an¬ 
nual tax of two per cent on all premiums collected by fire 
insurance companies, after all cancellations and dividends 
to policy holders are deducted. This fund is applicable to 
the payment of pensions to firemen for long service, 
for permanent disability, hospital nursing, and profession¬ 
al service in case of sickness, and pensions to widows and 
children of firemen who have lost their lives in service. 

Instead of this fund being managed as a unit by the 
state, it is divided up among the different cities and 
towns in the state in proportion to the amount of fire 
insurance premiums paid within them. Thus, as far as 
the disbursement of the fund is concerned, there is a 


’S. L. 1916. Ch. 37; S. L. 1917, Ch. 44, Sec. 2. 



Funds of the State 


345 


fund for each incorporated town and city in the state 
from which fire insurance premiums are received, and 
which conforms to certain requirements in respect to 
making reports. The management of each town’s or 
city’s part of the fund is in a board of trustees compos¬ 
ed of the mayor or the president of the board of trus¬ 
tees, the clerk and the treasurer of the city or town. 
This board of trustees provides for the disbursement of 
the funds, designates the beneficiaries and makes rules 
and regulations for the management of that part of the 
fund under its control. 4 

There is at present no administrative law as to how 
disability shall be determined, no provision in the state 
law for medical examination or supervision, no law as 
to service requirements, no general law, or regulation, 
as to when a person can obtain disability payment, no 
limitation as to the discretion of the officials as to the 
amount, of benefit, and no check upon the payment of a 
salary and a pension at the same time in case of dis¬ 
ability. As the state is contributing to this fund, it should 
probably be under the control of a centralized state 
board, which should be governed by certain adminis¬ 
trative laws and rules in respect to the disbursement of 
these funds. 

Another difficulty with this pension scheme is the in¬ 
flexibility of the amount of money going to various cities. 
The amount may be too large or too small, as the case 
may be, (generally the latter) to meet actual require¬ 
ments. The system is not figured on any exact basis at 
all, but is simply haphazard. The amount of premiums 
paid to insurance companies in any city or town at any 


4 S. L. 1913, Oh. 244: S. L. 1917, Ch. 161. 



346 


Government of Oklahoma 


given time may have no relationship to the amount ne¬ 
cessary to pay pensions. 

Still another difficulty of the system consists in the 
fact that the members of different fire departments are 
not themselves required to pay into the fund. If this 
were done, it would do much toward stabilizing the 
fund, and enabling it to meet the requirements made 
upon it. Perhaps the cities themselves, in order to get 
their share of the fund, should be required to make a 
certain appropriation to it. 

2. The Oklahoma State Teachers’ Retirement and 
Disability Fund. 

This fund consists of: 

1. A permanent fund composed of: 

a. All gifts, grants, devises and bequests in money or 
in other property. 

b. All money or property added by the legislature. 

c. All other money or property that may become a 
part of the fund. 

2. A current fund composed of: 

a. Interest on investments or deposits on permanent 
or current funds. 

b. One per cent of the annual salary of each teacher 
who wishes to come under the act and become a bene¬ 
ficiary of the fund. 

c. Apportionments from the proceeds derived from 
the permanent school fund and ad valorem taxes. 

d. Such additional amounts appropriated by the leg¬ 
islature as are necessary to meet all annuities, benefits, 
and other expenses in excess of the revenue above 
provided for. 

This fund is used for paying pensions and temporary 


Funds of the State 


347 


and permanent disability benefits, to those teachers in 
public or state schools who have complied with its con¬ 
ditions. 

The fund is under the management and control of a 
board of trustees known as the board of trustees of 
the Oklahoma state teachers' retirement and disability 
fund. The board is composed of the state superinten¬ 
dent of public instruction, the state treasurer, and 
three members appointed by the governor of the state 
from different counties, who are engaged in teaching 
or the supervision of teaching, and who except for the 
first appointees, shall have come under the provision 
of this act. Their term of office is three years. This 
board of trustees has charge of all proceeds coming 
to the fund, may receive gifts, grants, devises or be¬ 
quests, and may exercise the power to transfer and 
sell property, unless forbidden by the terms of the 
trust giving the property. 

This fund may be used in paying annuities to women 
who have taught twenty-five years or more in the 
public schools, ten of which years may have been 
spent outside the state, and to men who have been 
in the teaching service of the public schools thirty 
years'or more, fifteen of which years may have been 
in public schools outside of the state. This annuity 
is paid in accordance with the following schedule: 


For twenty-five years of service for women or 

thirty years for men_______$600.00 

For twenty-six years of service for women or 

thirty-one years for men--- _____ - 620.00 

For twenty-seven years of service for women or 

thirty-two years for men _____—_ 640.00 

For twenty-eight years of service for women or 





348 


Government op Oklahoma 


thirty-three years for men-.- 660.00 

For twenty-nine years of service for women or 

thirty-four years for men ----- 680.00 

For thirty years of service for women or thirty- 

five years for men________ 700.00 


Annuities are also paid for temporary or permanent 
disability, after a teacher has served for a period of 
twenty years or more. In case a teacher is retired for 
disability before meeting the conditions for permanent 
retirement, this annuity is paid only until the disability 
is relieved or removed. A medical examination is made 
at the expense of the teacher on the demand of the 
board of trustees to determine when the disability is 
removed. “No benefit for disability shall be paid for 
less than one-half of a school year.” The schedule ac¬ 
cording to which disability benefits are paid is as fol¬ 


lows: 

For twenty years of service, man or woman_$350.00 

For twenty-one years of service, man or woman...- 375.00 

For twenty-two years of service, man or woman.. 400.00 

For twenty-three years of service, man or woman .. 425.00 
For twenty-four years of service, man or woman. .. 450.00 
For twenty-five years of service, man or woman. .. 475.00 
For twenty-six years of service, man or woman.... 500.00 
For twenty-seven years of service, man or woman.... 525.00 

For twenty-eight years of service, man or woman. 550.00 

For twenty-nine years of service, man or woman.... 575.00 
These annuities are paid quarterly. 


Provision for a part payment of annuities is also made 
for persons who have paid into the fund for a less num¬ 
ber of years than they have served in the school system. 

Chapter 79, S. L. 1919, provides: “Such annuities shall 
be paid upon the order of the Board of Trustees in four 
equal payments, as follows: On January 1st, (the April 







Funds of the State 


349 


payment is ommitted from the law), July 1st, October 
1st, of each year, provided further, that any woman 
teacher entitled to annuity in accordance with the sched¬ 
ule of this section, that the annuity which she shall receive 
shall be as follows: 

“1st. Any woman teacher who is entitled to funds as pro¬ 
vided in this act and who has paid only the last five 
years’ assessment shall be entitled to only 40 per cent of 
the amount of annuity in the schedule. 

“2nd. Any woman teacher who is entitled to funds 
as provided in this act and who has paid only the last 
ten years’ assessment shall be entitled to only 55 per cent 
of the amount of annuity in the schedule. 

“3rd. Any woman teacher who is entitled to funds as 
provided in this act and who has paid only the last fif¬ 
teen years’ assessment shall be entitled to only 70 per cent 
of the amount of annuity in the schedule. 

“4th. Any woman teacher who is entitled to funds as 
provided in this act and who has paid only the last twen¬ 
ty years’ assessment shall be entitled to only 85 per cent 
of the amount of annuity in the schedule. 

“5th. Any woman teacher who is entitled to funds as 
provided in this act and who has paid the last twenty - 
five years’ assessment shall be entitled to the full amount 
of annuity in the schedule; provided, that any man 
teacher entitled to annuity in accordance with the 
schedule of this section, that the annuity which he shall 
receive shall be as follows: 

“1st. Any man teacher who is entitled to funds as 
provided in this act and who has paid only the last five 
years’ assessment shall be entitled to only 40 per cent of 
the amount of annuity in the schedule. 

“2nd. Any man teacher who is entitled to funds as 
provided in this act and who has paid only the last ten 


350 


Government of Oklahoma 


years’ assessment shall be entitled to only 52 per cent of 
the amount of annuity in the schedule. 

“3rd. Any man teacher who is entitled to funds as 
provided in this act and who has paid only the last fif¬ 
teen years’ assessment shall be entitled to only 64 per 
cent of the amount of annuity in the schedule. 

“4th. Any man teacher who is entitled to funds as 
provided in this act and who has paid only the last 
twenty years’ assessment shall be entitled to only 76 per 
cent of the amount of annuity in the schedule. 

“5th. Any man teacher who is entitled to funds as 
provided in this act and who has paid only the last 
twenty-five years’ assessment shall be entitled to only 
88 per cent of the amount of annuity in the schedule. 

“6th. Any man teacher who is entitled to funds as 
provided in this act and who has paid the last thirty 
years’ assessment shall be entitled to the full amount of 
annuity.” 

The provisions of this law are faulty in a number of 
places. In the first place, it is extremely unlikely that 
'the permanent fund will receive any particular incre¬ 
ments other than money or property added by the leg¬ 
islature. Experience has proved that not many gifts and 
bequests are given to such funds. It will be necessary 
for the legislature itself, therefore, to contribute practi¬ 
cally all of the permanent part of this fund. The current 
fund also, will undoubtedly prove entirely inadequate to 
meet the demands which will within a few years be placed 
upon it. The interest on investments or deposits will 
hmount to little. One per cent of the annual salary of 
any teacher who comes under this act will not provide 
for an adequate pension or disability benefit. The best 
of authorities agree that it requires four or five per cent 
of a person’s salary to provide adequately for such pen- 


Funds of the State 


351 


Sion or disability benefits, even when an equal amount is 
paid into the pension fund by the state or some other 
agency. 

Since this fund is entirely voluntary, probably a ma¬ 
jority of the teachers accepting its provisions will be 
those who have been rather long in service. This will 
mean that they will pay into the fund only a short time 
before their retirement and yet will receive a much 
larger proportion of the pension than the number of 
years of their payment bears to the time of their service. 
For instance, a woman having taught twenty years may 
start paying into the fund. She may pay into the fund 
one per cent of her salary for five years, and then retire, 
receiving forty per cent of the amount of annuity pro¬ 
vided in the schedule for such length of service. Thus, 
while she has paid in only twenty per cent of the amount 
that her assessments would have been during her term 
of service, she will receive forty per cent of the standard 
annuity. Moreover, the money which she has paid into 
the fund will only have been compounding for five years, 
whereas if she had begun her payments at the time of 
beginning her service, they would have been compound¬ 
ing for twenty-five years. Pension fund experts agree 
that in case payments are only made for the last few 
years, before the pension is paid, the assessment should 
be made at a much higher rate than in other instances. 

The law provides for benefit or disability annuities to 
be paid in case of a longer term of service than the mini¬ 
mum time for retirement from service. The question 
then arises as to whether or not, in case a woman teacher 
is permanently disabled after twenty-five years of service, 
(the time at which she may retire), she can receive both the 
service annuity and the disability benefits for the rest of 
her life. Since the retirement for men does not start until 


352 


Government of Oklahoma 


after thirty years of service, and since the schedule of bene¬ 
fit disabilities makes no provision for disability payment 
after twenty-nine years of service, it is not possible, 
under the law, for a man teacher to receive both pay¬ 
ments. 

Because of the facts that payments into the fund are too 
small and that teachers are permitted to receive benefits 
disproportionate to the amount of money they have paid, in 
order to meet the obligations for which the fund is re¬ 
sponsible, it will be necessary for the state to make an 
unusual demand upon the permanent school fund, as 
well as ad valorem school taxes collected by the state. 
While this demand may be small for a few years, as the 
fund becomes better known and more firmly established, 
its membership will grow, and the heavy liabilities in¬ 
curred from this large membership offset by the small 
amounts paid in will form a great drain on the resources 
of the common school fund as well as on the ad valorem 
school taxes collected by the state. There might also be 
a question as to the constitutionality of paying out the 
income of the permanent school fund for this purpose. 
The Enabling Act, Sections 7 and 9, granted Sections 16 
and 36 “for the use and benefit of common schools”, 
whereas this act provides for the payment of annuities 
“to persons engaged in teaching or in the supervision of 
teaching in the public schools of the state.” 

Again, the statement in the law that “No benefit for 
disability shall be paid for less than one-half, of the 
school year,” is ambiguous. Is no disability to be paid 
until a person has actually been disabled for one-half a 
school year, or does the law mean that one-half of a 
year’s annuity shall be paid for any disability? 

The law may be considered lacking in that it does not 
provide for any amount of disability payment*, unless a 


Funds of the State 


353 


teacher has served for at least twenty years. It is also 
lacking in that it makes no provision for any portion of 
the amount a teacher has contributed to be returned in 
case of withdrawal, dismissal or resignation at any time 
before the pension is due, nor is any provision made for 
the payment of any part of that money the teacher has 
actually contributed to the fund, to dependents or legal 
heirs in case of the death of the teacher, even after the 
length of service requirements have been fulfilled. 

Due to the extreme importance of having an adequate 
and competent pension system for the teachers of the 
state, the legislature should reconsider this fund very 
carefully and make such changes as seem to be neces¬ 
sary. 

GUARANTY FUNDS 

Within this class Oklahoma has two funds: The Home 
Loan Guaranty Fund and the Depositors’ Guaranty 
Fund. 

1. The Home Loan Guaranty Fund. 

This fund was established in 1919 (S. L. 1919, Gh. 194, 
Sec. 2). This fund is established for the security and 
guarantee of any second mortgages and the notes thereby 
secured, issued through the commissioners of the land of¬ 
fice under the home loan fund, which may be held by 
private individuals or corporations. 

That is, this fund is to be used exclusively to secure 
second mortgages in case the amount received at the 
time of foreclosure is not sufficient to satisfy the claim. 
This fund consists of the express company and other 
company refunds for overcharges which formerly es¬ 
cheated to the state, 5 and such other funds as may be 


354 


Government of Oklahoma 


provided by law. This fund will be discussed later on 
in connection with the home loan fund. 

2. The Depositors’ Guaranty Fund. 

This fund was established 5 for the purpose of paying de¬ 
positors of banks that have failed. The increments to this 
fund consist of: (a) An annual assessment against the 
capital stock of each and every bank organized under the 
laws of Oklahoma, equal to one-fifth of one percent of 
its average daily balances during its continuance as a 
banking corporation. After the fund amounts to as 
much as two percent of the average daily deposits of 
these state banks, over and above all certificates of in¬ 
debtedness, or other obligations chargeable against the 
fund, the annual assessment ceases, and thereafter it is 
the duty of the state banking board to maintain this 
fund to an amount of two percent of such average daily 
deposits by making, from time to time, assessments 
against the capital stock of all state banks. These as¬ 
sessments, however, shall not exceed one-fifth of one 
percent of the average daily deposits in any one year. 
The state banking board is given express authority to 
make these assessments, and also, to make all rules 
and regulations not inconsistent with the laws of the 
state for the purpose of collecting and equalizing the 
assessments among the state banks, (b) “If at any 
time, the depositors’ guaranty fund on hand shall be 
insufficient to pay the depositors of failed banks, or 
other indebtedness properly chargeable against the 
same, the Banking Board shall have authority to issue 
certificates of indebtedness to be known as ‘Depositors’ 
Guaranty Fund Warrants of the State of Oklahoma’, 
in order to liquidate the deposits of failed banks, or 


"S. L. 1913, Ch. 10. 



Funds of the State 


355 


any other indebtedness properly chargeable against said 
Depositors' Guaranty Fund." 9 

These warrants bear six percent interest payable an¬ 
nually, are issued in such form as is prescribed by the 
banking board, and constitute a charge and first lien upon 
the depositors' guaranty fund when collected, as well as 
a first lien against the capital stock, surplus, and undi¬ 
vided profits of each and every bank operating under 
the banking laws of the State of Oklahoma, to the ex¬ 
tent of the liability of any such bank to the guaranty fund. 
The banking board has authority to negotiate or other¬ 
wise dispose of such depositors' guaranty warrants, at 
not less than par, in such manner as it may see fit, to 
facilitate the liquidation of failed banks. 

The 1923 Legislature repealed the bank guaranty law, 
with the proviso that obligations in force at the time of the 
passing of the act should not be affected. (S. L, 1923, ch. 
137.) 


HOME LOAN FUNDS 

The State of Oklahoma, in connection with its land 
office department, has two home loan funds. 

1. The Home Ownership Fund. 

The first of these is known as the home ownership fund. 
This fund was established for the purpose of assisting 
farmers to pay for homes; pay off existing mortgages up¬ 
on their homes; or make permanent improvements upon 
their home farms. The loans from this fund must be secur¬ 
ed by first mortgages. The cash value of the land without 
the improvements must be double the amount of the 
loan. The capital and increments of this fund consist 
in: (a) moneys on hand or that may hereafter be re¬ 
ceived from the sale of section 13 or lands taken in lieu 


6 S. L. 1913, Ch. 22. 



356 


Government op Oklahoma 


thereof; (b) moneys on hand or that may be received from 
the sale of the New College Fund lands 7 ; (c) moneys arising 
from the sale for not less than par and accrued interest 
of any or all portions of the notes and securities taken for 
the sale price of the lands or unpaid portion thereof, the 
sale of these notes and securities being made absolutely and 
without recourse; (d) moneys arising from the sale of 
bonds drawing not to exceed four percent per annum in¬ 
terest, payable semi-annually; the commissioners may 
pledge for the payment of the principal and interest on 
these bonds, all notes and securities taken for the sale price 
of lands or unpaid portions thereof. These bonds shall not 
at any time exceed seventy-five percent of the face value 
of the unpaid portion of the principal on these notes; 
(e) the commissioners are further authorized to issue 
and sell, at not less than par value, bonds drawing not 
to exceed four percent per annum interest payable 
semi-annually, and to pledge for the payment of the 
principal and interest on these bonds, all notes and 
mortgages taken for loans from these funds. The 
amount of the bonds so issued, sold and outstanding, 
shall not, however, at any time, exceed ninety percent 
of the face value of the unpaid portion of these notes 8 . 
Each series of these bonds is payable as follows: twelve 
and one-half percent in four years from the date of is¬ 
sue; twelve and one-half percent in seven years; twelve 
and one-half per cent in ten years; fifteen per cent in fif¬ 
teen years; twenty percent in eighteen years and fifteen 
percent in twenty years. (This leaves 12 V 2 percent not 
accounted for.) 

Not more than $2,000.00 of this money can be loaned 
to any one individual or family. The loans are secured 


7 S. L. 1915, Oh. 34. 
*S. L. 1917, Oh 130 



Funds of the State 


357 


by first mortgages on farm lands upon which the bor¬ 
rower resides and which he holds as his homestead, the 
cash value of which, disregarding all improvements, must 
be at least double the amount of the loan. 

Notes are drawn to run for twenty years. A pay¬ 
ment of four percent of the full face value of each note 
is made semi-annually. At each payment, interest at 
the rate of five percent per annum upon the unpaid bal¬ 
ance of such note is deducted from the amount paid, and 
the remainder is credited upon the principal of the loan 9 . 

2. The Home Loan Fund. 10 

The home loan fund was established in 1919 for the pur¬ 
pose of encouraging home ownership, by making loans de¬ 
signed to enable tenant farmers to secure homes. In order to 
make these loans the legislature made an appropriation of 
$250,000 from the general fund, to be placed under the 
control of the commissioners of the land office. Any 
person who has been a bona fide resident of Okla¬ 
homa for two years or more, “who desires to buy a 
farm, and who has an opportunity to buy a farm and 
who is not the owner of more than forty (40) acres of 
land,” may apply for a loan. After an inspection is 
'made of the farm sought to be purchased by the ap¬ 
plicant, and appraisal is made of it, a first loan of fifty 
percent of the appraised value of the farm is made from 
the new college fund. This loan is secured by a first 
mortgage running for a period of twenty years and notes 
drawn to run for the same period. A payment of four 
percent of the face value of each note is to be made 
semi-annually. At each payment, interest at the rate 
of five percent per annum upon the unpaid balance 
of such note is deducted from the amount paid, and 


Tbid. 

1f S. L. 1919, Oh. 194. 



358 


Government of Oklahoma 


the remainder is credited upon the principal of the loan. 

The commissioners of the land office are given au¬ 
thority to loan any part of the remaining purchase price 
of this land from the home loan fund. Here again 
notes are drawn to run for a period of twenty years, and 
a payment of four percent of the face value of each 
note is made semi-annually. At each payment interest 
at the rate of five percent per annum upon the unpaid 
balance of such notes is deducted from the amount paid 
and the remainder is credited to the principal of the 
loan. At the option of the maker of such notes, either 
the first or the second mortgage or any part thereof may 
be paid at any interest-paying period. The commission¬ 
ers of the land office are forbidden to aid any person 
in securing more than 160 acres of land under the pro¬ 
visions of this act. No applicant will be permitted to 
secure a loan from the home loan fund of more than 
$2,000. Applications for loans are made to local 
boards in each county, consisting of three members, ap¬ 
pointed by the governor. The duties of this board are 
to receive applications for loans, and to make recom¬ 
mendations to the school land commission as to the 
‘‘moral character, integrity, industry and ability of the 
applicant/’ 

In order to increase the capital of this fund, the com¬ 
missioners of the land office are authorized to sell sec¬ 
ond mortgage notes, or pledge the same, at any time for 
not less than par value and accrued interest, or to is¬ 
sue and sell bonds against these notes in the same man¬ 
ner as is provided by the home ownership law. 11 Tht 
money so obtained from the sale of these bonds, or from 
the sale or pledge of notes, may be reloaned. “And a* 
often as funds are needed for the loans, and notes art 


[ S. L. 1917, C'ii. 130. 


Funds of the State 


359 


taken on second mortgages, additional bonds shall be 
issued and sold, and the proceeds likewise reloaned, or 
notes sold or pledged.” 

By means of this fund, used in connection with the New 
College Fund, an individual may secure all of the purchase 
price of a farm from the state, since the state loans fifty 
percent of the value cf the land from the New College Fund, 
and may loan the remaining fifty percent from the Home 
Loan Fund. The state, by establishing this fund, therefore, 
has quite definitely embarked upon the policy of lending 
money equal to the full value of land, in order to secure 
home ownership. 

Whether or not such loans are expedient is some¬ 
what problematical. The advantages of such a plan 
might be the gradual doing away with tenant farming, 
which is altogether too prevalent in the state of Okla¬ 
homa. With the present prices of land, however, the 
maximum loan Would not enable an individual to pur¬ 
chase, as a rule, more than forty acres of land. It is 
somewhat doubtful whether forty acres of land is large 
enough to carry on properly farming operations, partic¬ 
ularly the raising of wheat, cotton, or cattle. It might 
tend to break the state up into a great many small, and 
therefore unprofitable, farms. Moreover, the $250,000 
appropriated for such loans is only a drop in a 
bucket in comparison to the amount required to meet 
applications. Through the selling of the second mort¬ 
gage notes and the issue of bonds against these notes, 
further money can, of course, be obtained. In this way, 
the state’s credit could be pyramided almost indefinite¬ 
ly, subject only to the fact that people may not wish to 
buy such securities. In case they will buy such securi¬ 
ties, the state’s credit is loaned on a rather precarious 
basis; and in case people will not buy them, the $250,- 


360 


Government of Oklahoma 


000 would go a very short way toward accomplish¬ 
ing the purposes of this act. 

It is true that a guaranty fund has been established 
in connection with this fund, which guarantees the 
payment of these mortgages in case the property, when 
sold under proceedings of foreclosure, is insufficient 
to do so. A person holding a second mortgage is paid 
in full by the state upon the surrender of the mortgage 
to the state. The mortgage and the defaulted notes 
given in connection therewith become the property of 
the state. In case of a series of hard years, therefore, 
the state might find itself forced to pay from the 
guaranty fund, a large difference between what the 
property would bring at a forced sale and the mort¬ 
gage upon the property. Since the increments to the 
guaranty fund are not particularly large, the state 
might find itself liable for the payment to second mort¬ 
gage holders of a very large sum of money. This might 
be particularly so at the present time, when loans are 
made on inflated land values. The state might find 
itself greatly burdened, therefore, in guaranteeing these 
notes and mortgages, and might find itself the owner 
of much land which it could not sell for as much as 
it had invested in it. Another question that should be 
asked in respect to the home loan fund: Will the four per¬ 
cent semi-annual payment, with interest at the rate of 
five percent per annum upon the unpaid balance, deduct¬ 
ed from the amount paid, be sufficient to attract buyers 
for these bonds? If not, the $250,000 laid aside for 
this purpose would do little good in relieving the ten¬ 
ancy problem. 


Funds of the State 


361 


FUNDS DERIVED FROM THE RECEIPTS FROM LICENSING, EXAM¬ 
INING AND REGULATING 

The state has placed its receipts derived from ex¬ 
amining, licensing and regulating in some fourteen separate 
funds. The money received from such service is usually 
made applicable for the payment of salaries and expenses 
of the commissions doing the work. As a rule, the money 
is paid into the official depository of the state and from 
there is paid out upon the warrant of the board or com¬ 
mission having charge of the fund. 

One of the main difficulties of having funds set 
aside for these purposes, beside those given in connec¬ 
tion with the revolving funds, is the fact that a con¬ 
siderable amount of the state’s money may be held 
idle in these funds at the same time that the state is 
short of money in other funds and so the state must 
borrow to replace them. It often happens that the 
state may have hundreds of thousands or even several 
millions of dollars of money on deposit belonging to 
the various funds on which it receives only three percent 
interest and yet it may have issued warrants drawing six 
percent interest totaling hundreds of thousands of dol¬ 
lars on other funds, the income of which is temporarily 
unavailable. 

FREE SCHOLARSHIP FUNDS 

For the purpose of placing practical training in agri¬ 
culture within the reach of children in the state and 
of stimulating interest in scientific farming, the state 
has established a free scholarship fund in the Agricultur¬ 
al and Mechanical College. 12 All students are eligible to 
take examinations for these scholarships who have com- 

12 S. L. 1919, Ch. 26. 




362 


Government of Oklahoma 


pleted the common school course, who have taken their 
examinations and who have received their diplomas, or 
are entitled to diplomas. The examinations are given by 
the Agricultural and Mechanical faculty. The students 
making the first and second highest general average in 
each county are awarded these scholarships, while those 
making the third and fourth general averages are desig¬ 
nated as alternates. Similar scholarships are awarded 
negro children in the Colored Agricultural and Normal Uni¬ 
versity, and five thousand dollars a year is given by the state 
for this fund. 13 Persons receiving the benfit of these schol¬ 
arships obligate themselves to be farmers for at least such 
period of time as they shall have been students of the Agri¬ 
cultural and Mechanical College. 14 The state has appropri¬ 
ated $20,000 for the fiscal year 1922-23 for this purpose. 

STATE TEXT BOOK FUND 

A law of 1923 (S. L. Ch. 175) establishing the state text 
book fund, provides that the net amount of money collected 
by the state insurance commissioner from all foreign in¬ 
surance companies (except fire insurance companies) doing 
business in the state of Oklahoma shall tbe paid into this 
fund. The moneys so collected are to be used in purchas¬ 
ing text books in basic subjects for all children enrolled in 
the public schools from the first to the eighth grades inclu¬ 
sive. The purchase and management of the free text books 
is under the control of the state superintendent of public 
instruction, subject to the approval of the state board of 
education. 

AGENCY FUNDS 

The state has one agency fund--that is, a fund for 


,s *. L. 1921, Ch. 196. 
“S. L. 1921, Ch. 15. 



Funds of the State 


363 


which the state acts simply as an agent—tthe highway 
construction fund. 15 This fund is derived from an ad 
valorem tax of one-fourth of one mill on all property 
of the state subject to taxation on an ad valorem basis. 
This money is merely held in trust by the state for the 
use of the various counties for highway construction 
purposes, and is distributed in proportion to the amount 
that is received from them. That is, each county re¬ 
ceives the amount that the one-fourth of one mill levy, 
applied to its assessed valuation, will produce. 

SINKING FUNDS 

These funds are sufficiently described in the chapter on 
state indebtedness, Chapter XI. 

III. FUNDS WHICH THE LEGISLATURE HAS LIT¬ 
TLE OR NO POWER TO CHANGE, TO CONTROL, OR 
TO APPROPRIATE FROM, BECAUSE OF CONDI¬ 
TIONS LAID DOWN BY THE NATIONAL GOVERN¬ 
MENT OR RESTRICTIONS EMBODIED IN THE 
STATE CONSTITUTION. 

AGENCY FUNDS 

The state has several funds for which it acts to some 
extent as an agent for the national government. These 
are: 

1. Fund for Agricultural Experimentation. 

2. Fund for the Endowment and Support of Agri¬ 
cultural Colleges. 

3. Fund for Co-operative Agricultural Extension 
Work. 

4. Vocational Education Fund. 

5. Fund for Aid to Highways. 

6. Maternity and Infant Welfare Fund. 


5 S. L. 1916, Sec. 7. 



364 


Government of Oklahoma 


FUND FOR AGRICULTURAL EXPERIMENTATION 

This is an annual appropriation made by the United 
States for the purpose of promoting practical infor¬ 
mation and exciting interest in agriculture. 16 In case 
the state has only one A. & M. College and no other 
experiment station, the whole sum goes to it. If the 
state has two or more experiment stations or agricul¬ 
tural colleges, the appropriation . is divided equally 
among them unless the legislature directs otherwise. 
Where the state has separate experiment stations it may 
apply this money to them alone. Where it has agricul¬ 
tural experimentation in connection with other schools 
or colleges the legislature may apply such money to 
these. In Oklahoma all the money goes to A. & M. 
College. Oklahoma receives some $30,000 annually from 
this fund. 

FUND FOR THE ENDOWMENT AND SUPPORT OF AGRICULTURAL 
COLLEGES 

This item consists of an annual appropriation from 
the national government of $50,000 to each state and 
territory in the United States. $45,000 of this money 
goes to A. & M. College and $5,000 18 goes to the Col¬ 
ored A. & N. U. This money can only be used for 
instruction in agriculture and mechanical arts, in the 
English language, mathematics, physics, natural science 
and economics. No portion of this money can be used 
for buildings. An Act of March 4, 1907, provides that 
agricultural colleges may apportion this money for pro¬ 
viding courses for the special preparation of instruc- 

“Barnes Federal Code, 1919, Secs, 8236-8256; R. L. Okla., 1910, Sec 
7974. 7984-7985. 

17 Barnes Federal Code, Secs. 8400-8412. 

M R. L. Okla. 1910 Sec. 7986. 



Funds of the State 


365 


'tors for teaching the elements of agriculture and me¬ 
chanical arts. 

FUND FOR CO-OPERATIVE AGRICULTURAL EXTENSION WORK 

This is a federal appropriation of $480,000 for each 
year, $10,000 of which is paid annually to each state. 
There was also an appropriation of an additional $600,- 
000 for the fiscal year following that in which the fore¬ 
going appropriation first became available, 1915, and 
for each year thereafter for seven years, a sum exceeding 
by $500,000 the sum appropriated for each preceding year; 
and for each year thereafter there is permanently appro¬ 
priated the sum of $4,100,000 in addition to the $480,000 
before provided. These additional sums are allotted annual¬ 
ly to each state by the secretary of agriculture, “In the 
proportion which the rural population of each state bears 
to the total population of all the states, as determined by 
the next preceding federal census.” No payment other than 
the $10,000 payment is made to any state, however, until 
an equal sum has been appropriated for that year by the 
legislature of the state, or has been provided by state, coun¬ 
ty, college, local authority, or individual contributions from 
within the state for the maintenance of the co-opera¬ 
tive agricultural extension work provided for in this 
Act. 19 No portion of this money can be applied direct¬ 
ly or indirectly to the purchase, erection, preservation 
or repair of any building or buildings, or the purchase 
or rental of lands or in college-course teaching, lec¬ 
tures in colleges, promoting agricultural trains, or any 
other purpose not specified in the Act. Not more than 
five percent of each annual appropriation shall be ap¬ 
plied to the printing or distribution of publications. It is 
made the duty of each of said colleges annually, on or 


"Tunnies Federal Code 1910, See. 8421-8439. 



366 


Government op Oklahoma 


before the first day of January, to make_to the gov¬ 
ernor of the state in which it is located a full and de¬ 
tailed report of its operations in the directing of ex¬ 
tension work. A copy of this report must be sent to 
the secretary of agriculture and the secretary of the 
treasury of the United States. 

VOCATIONAL EDUCATIONAL FUND 

This is an annual payment by the national govern¬ 
ment to the states for the purpose of paying the sal¬ 
aries of teachers, supervisors and directors of agricul¬ 
tural subjects; teachers of trade, home economics and 
industrial subjects, and for the purpose of training 
teachers in these subjects. 20 This money is appropriated 
as follows: 1. For cooperation in paying teachers 
in agricultural subjects. The sums appropriated for the 
fiscal year under consideration and subsequent years 
are as follows: For the fiscal year ending June 30, 
1921, the sum of $1,250,000; for the fiscal year end¬ 
ing June 30, 1922, the sum of $1,500,000; for the 
fiscal year ending June 30, 1923, the sum of $1,750,- 
000; for the fiscal year ending June 30, 1924, the 
sum of $2,000,000; for the fiscal year ending June 
30, 1925, the sum of $2,500,000; for the fiscal year 
ending June 30, 1926, and annually thereafter, the 
sum of $3,000,000. These sums are allotted to the 
states in the proportion which their rural population 
bears to the total rural population in the United States. 
During the fiscal year 1919-20, Oklahoma received for 
paying teachers in agricultural subjects $27,092.81; and 
for the year 1920-21 she received $33,866.03. 

2. For paying teachers in trade, home economics and 
industrial subjects. For the fiscal years we have under 

’"Barnes Federal Code 1919, Sec. 8421-8431. 



Funds of the State 


367 


consideration and for subsequent years the amounts 
appropriated are as follows: For the fiscal year end¬ 
ing June 30, 1921, the sum of $1,250,000.00, for the 
fiscal year 1921-22, the sum of $1,500,000; for the 

fiscal year 1922-23, the sum of $1,750,000; for the 

fiscal year 1923-24, the sum of $2,000,000; for the 

fiscal year 1924-25, the sum of $2,500,000; for the 

fiscal year 1925-26, the sum of $3,000,000, and an¬ 

nually thereafter the sum of $3,000,000. This money 
is allotted to the states in the proportion which their 
urban population bears to the total urban population 
of the United States, not including outlying possessions, 
according to the last preceding United States census. Not 
more than twenty per cent of the money appropriated 
under this Act for the payment of salaries of teachers 
of trade, home economics and industrial subjects for 
any year shall be expended for salaries of teachers of 
home economics subjects. 

3. For cooperation in the training and preparation 
of teachers. For the purpose of cooperating with the 
states in preparing teachers, supervisors and directors 
of agricultural subjects and teachers of trade, industrial 
and home economics subjects, there are appropriated 
for the fiscal years we have under consideration and 
subsequent fiscal years, the following amounts: For the 
fiscal year ending June 30, 1921 and annually there¬ 
after, the sum of $1,000,000. These sums are allotted 
to the states in the proportion which their population 
'bears to the total population of the United States, not 
including outlying possessions, according to the last 
preceding census. This money granted to the states un¬ 
der the vocational educational fund is granted under 
the provision that the states pay dollar for dollar of 
the amount granted by the national government. 



36b 


Government of Oklahoma 


FUND FOR AID TO HIGHWAYS 

In 1916 the Federal Government instituted the plan 21 
of cooperating with the states in the construction and 
maintenance of rural post roads. An act of 1921 22 ex¬ 
tended the plan of work to provide for aid to state 
highway systems, preferably “such projects as will ex¬ 
pedite the completion of an adequate and connected 
system of highways, interstate in character.” Approval 
of a projected highway system, and the surveys, plans, 
specifications and estimates therefor, shall be given by 
the secretary of agriculture, who administers the fed¬ 
eral aid. The amount paid to any state under this act 
is not to exceed fifty per cent of the “total estimated 
cost” of a highway project 23 ; and each state, before its 
project is approved, “shall make provisions for state 
funds required each year .... for construction, re¬ 
construction, and maintenance, of all Federal-aid high¬ 
ways within the State, which funds shall be under the 
direct control of the State Highway Department.” Pay¬ 
ments of federal money are made “to such official or 
officials or depository as may be designated by the 
state highway department and authorized under the 
laws of the state to receive public funds of the state.” 
For the fiscal year ending June 30, 1922 there was 
appropriated $75,000,000. After deducting two and one- 
half percent of this money for administrative research 
and investigation, the secretary of agriculture appor¬ 
tions the remainder among the several states: one- 
third in the ratio which the area of each state bears 
to the total area of all the states; one-third in the 

"Barnes Federal Code, Secs. 8421-8431. 

22 Act of Congress, Nov. 9, 1921. 

“States containing unappropriated public lands exceeding five 
rcent of their total area may receive a slightly larger appropriation. 



Funds of the State 


369 


ratio which the population of the state bears to the 
total population of all the states; and one-third in the 
ratio which the mileage of rural delivery routes and 
star routes bears to the total mileage of rural delivery 
routes and star routes. 

The 1917 session of the Oklahoma legislature passed 
an act 24 accepting the terms of the federal road act 
of 1916 and making appropriations to meet federal ap¬ 
portionments to and including the fiscal year ending 
June 30, 1919. The 1919 session passed an act 25 author¬ 
izing the state treasurer to handle moneys appropriat¬ 
ed by counties, townships, road districts, cities, and. 
other subdivisions of the state, which might desire “to 
contribute .... toward the building of federal aid 
road projects.” No appropriation was made at this ses¬ 
sion. No additional state appropriations have since been 
made, but an extraordinary session of the legislature 
in 1920 reduced the amount of money which it was 
understood should be reappropriated from unused 
funds; and the extraordinary session in 1921 undid this 
work by appropriating a sum equal to said reduction. 2 " 

Under the federal act of 1916, then, the state as a 
whole has appropriated relatively little to the fund for 
aid to highways, but many subdivisions of the state 
have contributed to this fund in order to assure to 
themselves a share in the highway projects. It remains 
to be seen what action the state will take in regard 
to the federal aid act of 1921 (Act of Nov. 9, 1921; 42 Fed. 
Stat. 212.) 

M S. L. 1917, House Joint Resolution No. 16. 

“S. L. 1919, Oh. 311. 



370 


Government of Oklahoma 


MATERNITY AND INFANT WELFARE FUND 

An Act of Congress of Nbv. 23, 1921 provides that 
the sum of $240,000 each year is to he equally appor¬ 
tioned among the several states for a period of five 
years for “promoting the welfare and hygiene [of ma¬ 
ternity and infancy.” An additional sum of $1,000,000 
annually thereafter for a period of five years is appro¬ 
priated. Five thousand dollars of this appropriation 
is given to each state and the balance is apportioned 
among the states in the proportion which their popula¬ 
tion bears to the total population of the United States. 
This apportionment is accompanied with the proviso, 
“That no payment out of the additional appropriation 
herein authorized shall be made in any year to any 
State, until an equal sum has been appropriated for that 
purpose by the legislature of such state for the mainten¬ 
ance of the services and facilities provided for in this 
act.” 27 States desiring to secure the benefits of this Act 
must submit plans to the Childrens Bureau for approval, 
and must also make reports concerning their operations 
and expenditures. 28 

ENDOWMENT FUNDS 

Another class in Group III consists of Endowment 
Funds. These are: 

I. The Common School Fund. 

II. The Union Graded and Consolidated School Dis¬ 
trict Fund. 

III. The New College Fund. 

IV. Section 13 Fund—State Educational Institution* 
Fund. 

37 Act of Nov. 23, 1921, Sec. 2. U. S. Compiled Stat., 9188Mi. 

“Ibid. Secs. 4 and 8. 



Funds of the State 


371 


V. The Public Building Fund. 

THE COMMON SCHOOL FUND 

The most important of these funds is the Common 
School Fund. 29 

This fund was established by the national govern¬ 
ment when it granted sections 16 and 36 in each town¬ 
ship in Oklahoma Territory or the proceeds thereof for 
the use of common schools. 30 The national government 
also gave five million dollars to this fund in lieu of 
sections 16 and 36 in the Indian Territory, 31 and five 
percent of the proceeds of the sales of public lands 
lying within the state. 32 This fund has been further 
augmented by receipts arising from bonuses, royalties 
and rentals on oil and gas leases belonging to the fund; 33 
by certain properties falling to the state through es¬ 
cheat; 34 appropriations that have been made by the leg¬ 
islature, part of the optometry fees, 35 and last but not 
least, by one-fourth mill tax on all property in the 
state assessed on an ad valorem basis. 36 

This ad valorem tax is levied by the state board of 
equalization and is apportioned among the common 
schools of the state on the basis of the number of child¬ 
ren of school age in each of the common school districts 
of the state." The capital of this fund may be increased 
but not diminished, and no part of this fund may be 
diverted to any purpose other than the support and main- 

“Const. Art. XI, Sec. 2. 

"Organic Act, Sec. 18. 

"Enabling Act, Sec. 7. 

"Enabling Act, Sec. 11. 

“Const. Art. XI, Sec. 3; R. L. 1910, Secs. 7195-7203. 

“S. L. 1919, Oil. 172. 

"Bunn’s Supplement, 1918, Sec. 6914g. 

“R. L. 1910, Sec. 7374. 

“Const. Art. XI, Sec. 3. 



372 Government of Oklahoma 

tenance of the common school system of the state. The 
apportionment of the money to the counties is made 
by the superintendent of public instruction, monthly, 
being based on the school census as taken January 15th 
of each year. The commissioners of the land office then 
apportion the income derived from the fund among the 
several counties of the state. 

THE UNION GRADE AND CONSOLIDATED SCHOOL DISTRICT 
FUND 

This fund was established by an Act of Congress in 
1897, 68 and consists of lands given by the federal gov¬ 
ernment embracing Section 33 in each township in Greer 
County, funds derived from sale of such lands, and pro¬ 
ceeds arising from rentals and sales accrued. This fund 
is to be used exclusively to assist in paying for and 
constructing buildings in consolidated or union graded 
school districts. 39 The funds must be appropriated in 
such a way as will result in a fair and equitable distri¬ 
bution among the counties of the state in proportion as 
much as possible to the scholastic population outside of 
cities of the first class. No district can receive an ap¬ 
propriation of over $2,500 from this fund. 

THE NEW COLLEGE FUND 

The New College Fund was established by Congress 
by Section 12 of the Enabling Act and was accepted by 
the State of Oklahoma by the Constitutional Conven¬ 
tion. 40 This fund is divided among ten institutions, for 
each one of which the state carries a separate fund : This 

38 Vol. 29, page 490, U. S. Statutes at Large. 

*S. L. 1911, Ch. 112. 

441 Const. Art. XI. Sec. l. 



Funds of the State 


373 


fund consists in land in lieu of internal improvements 
and swamp lands as follows: 

(1) For the benefit of Oklahoma University, 250,000 
acres. 

(2) For the benefit of the University Preparatory 
School, 150,000 acres. 

(3) For the benefit of A. &. M., 250,000 acres. 

(4) For the benefit of the Colored A. & N. U., 100,- 
000 acres. 

(5) For the benefit of the Normal Schools, 300,000 
acres. 

No part of the proceeds shall be used for the support 
of any religious or sectarian college or university. The 
capital of this fund cannot be diminished and only its 
income can be used. Educational institutions receiving 
these funds must be under the exclusive control of the 
state. 

SECTION 13 FUND—STATE EDUCATIONAL INSTITUTION FUND 

This fund, like the new college fund, is divided among 
the various higher educational institutions of the state. 
It was established by Act of Congress in 1897 41 and was 
accepted by Oklahoma in her Constitution. 42 The fund 
consists in the “use and benefit” of Section 13 which has 
been granted for this purpose in every portion of the 
state. This fund consists of (a) proceeds from sale of 
lands; (b) indemnity lands granted in lieu of these sec¬ 
tions; (c) income, interest and rentals from these sec¬ 
tions, or from moneys received from their sale. This 
money was to be appropriated among the different edu¬ 
cational institutions according to the will of the legis- 


4l Vol. 29, page 490 U. S. siatutes at Large. 
42 Const. Art. XI, Secs. 1, 5, and 6. 



374 


Government op Oklahoma 


lature. By Chapter 249 of the Session Laws of 1917, the 
interest, income, rentals and proceeds of the above lands 
were to be divided as follows: one-third was to go to 
the Agricultural & Mechanical College and the Colored 
Agricultural and Normal University, of which the A. 
& M. College was to receive nine-tenths and the Colored 
A. & N. U. was to receive one-tenth. One-third was to 
go to the University of Oklahoma and the University 
Preparatory School, of which the University of Okla 
homa received nine-tenths and the University Prepara 
tory School received one-tenth. 

By the same law the normal schools received one : 
third of this fund. This is divided equally among them. 

The educational institutions receiving these funds 
must remain under the exclusive control of the state. 
None of the funds must ever be diverted either tem¬ 
porarily or permanently from the purposes set forth 
in the Act, and no portion of these funds can be used 
for the support of religious educational institutions. The 
capital of this fund cannot be diminished and only the 
income may be used. 

THE BUILDING FUND 

Section 8 of the Enabling Act provided that Section 
33 and “all lands heretofore selected in lieu thereof, 
heretofore reserved under said proclamation, and Acts 
for charitable and penal institutions and public build¬ 
ings, shall be apportioned and disposed of as the Leg¬ 
islature of the State may prescribe.” 

The legislature acting under this authority in 19 ll 43 
established a public building fund, by providing, that 
“all moneys heretofore or hereafter received by the sale 
and rental of Section 33 and lands granted in lieu 


J S. L. 1911 Oh. 89. 



Funds of the State 


375 


thereof, the same being lands granted to the State of 
Oklahoma for charitable and penal institutions and 
public buildings, shall constitute and be known as the 
‘Public Building Fund.”’ The increments to this fund 
consist in moneys received from sale and rentals of 
Section 33 and lands granted in lieu thereof and from 
the sale of bonds. These bonds and the interest thereon 
are payable out of the sale or rental of these lands. 
This fund is further described in the following chapter on 
“Funded Debt of the State of Oklahoma.” 


CHAPTER XI. 


THE FUNDED DEBT OF THE STATE 

The funded debt of the State of Oklahoma will be 
considered under two headings: 

I. Constitutional and Statutory Provisions Governing 
such Debts. 

II. The State Funded Debts. 

There are several provisions in the constitution gov¬ 
erning both temporary and funded indebtedness. 

Article X, Section 23 of the constitution provides 
that, “The State may, to meet casual deficits or failure 
in revenues, or for expenses not provided for, contract 
debts; but such debts, direct and contingent, singly or 
in the aggregate, shall not, at any time, exceed four 
hundred thousand dollars, and the moneys arising from 
the loans creating such debts shall be applied to the 
purpose for which they were obtained or to repay the 
debts so contracted, and to no other purpose what¬ 
ever/’ In the case of In Re Application of State to Is¬ 
sue Ronds to Fund State Indebtedness (33 Okla. 797:127 
Pac. 1065) it was held, that the limitations of this sec¬ 
tion were not intended to apply to that class of pecuni¬ 
ary obligations arising out of the ordinary necessary cur¬ 
rent expense of maintaining the state government and 
which were in good faith intended to be paid, and were 
lawfully payable out of the current yearly revenues and 
other resources of the state, for the fiscal year within 
which said obligations were incurred. 

“Whenever the expenses of any fiscal year shall ex¬ 
ceed the income, the legislature may provide for levying 
a tax for the ensuing fiscal year, which with other re- 

(376) 


The Funded Debt of the State 377 

sources, shall be sufficient to pay the deficiency, as well 
as the estimated ordinary expenses of the State for the 
ensuing year.” 1 The courts have held that this provi¬ 
sion for paying such deficiencies is not exclusive, and 
that the legislature could, therefore, fund such a debt, 
instead of levying a tax to pay it. 2 This was done when 
the 1913 funding bonds were issued. 

Section 24 of Article X provides that, “In addition to 
the above limited power to contract debts, the State may 
contract debts to repel invasion, suppress insurrection or 
to defend the State in war; but the money arising from 
the contracting of such debts shall be applied to the pur¬ 
pose for which it was raised, or to repay such debts, and 
to no other purpose whatever.” 

The main provision of the constitution regarding 
funded debts is found in Article X, Section 25, which pro¬ 
vides, “Except the debts specified in sections twenty- 
three and twenty-four of this article, no debts shall be 
hereafter contracted or on behalf of this State, unless 
such debts shall be authorized by law for some work or 
object, to be distinctly specified therein; and such law 
shall impose and provide for the collection of a direct 
annual tax to pay, and sufficient to pay, the interest on 
such debt as it falls due, and also to pay and discharge 
the principal of such debt within twenty-five years from 
the time of the contracting thereof. No such law shall 
take effect until it shall, at a general election, have been 
submitted to the people and have received a majority 
of all the votes cast for and against it at such election. 
On the final passage of such bill in either House of the 
Legislature, the question shall be taken by yeas and nays 
to be duly entered on the journals thereof, and shall be: 


T/onst. Art. 10, Sec. 3. 

*33 Okla. 797, 127 Pac. 1065. 



378 Government of Oklahoma 

‘Shall this bill pass, and ought the same to receive the 
sanction of the people?' ” 

The payment of state debts is provided for by Article 
X, Section 4 of the constitution, which provides that, 
“For the purpose of paying the State debt, if any, the 
legislature shall provide for levying a tax, annually, 
sufficient to pay the annual interest and principal of 
such debt within twenty-five years from the iinal pas¬ 
sage of the law creating the debt.” 

Acting under the constitutional provision that “The 
State may, to meet casual deficits or failure in revenues, 
or for expenses not provided for, contract debts; . . 
the legislature has authorized departments, institutions, 
etc., to create deficiencies in case of emergencies by 
getting the written consent of the governor, setting forth 
the cases justifying such deficiencies, and the facts oc¬ 
casioning the emergency. The total of such deficiencies 
must not exceed $200,000 for any one fiscal year. 5 

THE STATE FUNDED DEBTS. 

The State of Oklahoma has three funded debts: 

A. State Funding Bonds of 1908. 

B. The Public Building Bonds of 1910 and 1911. 

C. State Funding Bonds of 1913. 

STATE FUNDING BONDS OF 1908 

These bonds were issued for the purpose of funding 
the territorial debt and interest thereon and the debt 
of $157,700 and interest contracted during the first 
year of statehood. Bonds to meet this indebtedness in 
the amount of $1,460,000 were issued in ten series des¬ 
ignated as series from A to J, each series consisting of 
$146,000. No payment of principal was to be made on 


3 S. L. 1919, Ch. 229. 



The Funded Debt of the State 


379 


these bonds until 1918, when the first series became 
4due. The law provided that a sufficient tax levy should 
be made annually to pay the annual interest on the 
'bonds and to provide for a sinking fund to pay the 
principal when due. 4 Despite this provision of the 
law, no payments were made until 1918, the time when 
the annual serial payments began. A payment of 
$73,000 annually, therefore, would have had to be made 
during the entire life of the bonds in order to retire 
them, since the law in respect to sinking funds does not 
seem to provide for any interest accruals on sinking fund 
money 5 * , nor is there any provision for the investment of 
sinking fund money. It is the practice of the state treasur¬ 
er to simply hold sinking fund money on deposit and turn 
the interest therefrom into the general fund. 

The legislature in providing for the payment of the 
debt, evidently contemplated that twenty annual pay¬ 
ments of $73,000 should be made. As was said above, 
no sinking fund was laid aside from the years 1909 to 
1918. Beginning with 1918, however, the board of 
equalization began laying aside money for this fund 
in addition to the payment of the annual serial instal¬ 
ment. For the year ending June 30, 1918, the board of 
equalization laid aside for this fund $146,000 from the 
general fund. 8 

For the year ending June 30, 1919, another $146,000 
was set aside from the 1919 surplus in the general 
fund. 7 The regular series due have been paid up to and in¬ 
cluding 1921. Partial payments have been made on all the 

Tt. L. 1910, Secs. 351-361. 

^Session Laws 1919, Chapter 287, Sec. 3. 

®Bciard of Equalization Minutes, Vol 4, Page 357. 

7 Board of Equalization Minutes, Vol. 4, page 557. 



380 


Government op Oklahoma 


other series except one, the sum of these payments being 
$42,000; leaving a balance outstanding of $834,000 

CRITICISMS AND RECOMMENDATIONS 

Setting aside a sinking fund for the payment of serial 
bonds was an unusual procedure on the part of the leg¬ 
islature which perhaps they believed to be necessary be¬ 
cause of the constitutional provision contained in Arti¬ 
cle X, Section 4, that for the purpose of paying the 
state debt, if any, the legislature shall provide for levy¬ 
ing annually a tax sufficient to pay the annual interest, 
and to repay the principal of such debt within twenty-five 
years of the final passage of the law creating the debt. 
However, it is evident that the payment of an installment 
of principal each year on a funded debt is equivalent to 
the setting aside of a sinking fund, and that such pay¬ 
ment actually meets the intent of the constitution. It 
is equally evident that the method of paying off the in¬ 
stallments as they fall due and also laying aside money 
toward a sinking fund is illogical and wasteful, since it 
deprives the state of the use of money which might be 
employed advantageously for any of several different 
purposes. Realizing this situation, the board of equaliza¬ 
tion in the fall of 1920 applied the money in this fund to 
the retirement of $32,500 of the bonds outstanding 
against the fund 8 and used most of the balance of this 
money in retiring bonds of the 1913 funded debt. No 
further payments should be made into this sinking fund, 
as the bonds are being retired annually as they fall due 
by appropriations from the general fund. 

^Budget 1923-1925, LXXXVII. 

*R. L. 1910, Sec. 356, provides that these bonds may be bought in 
and cancelled at any time. 



The Funded Debt of the State 


381 


THE PUBLIC BUILDING BONDS OF 1910 AND 1911 

When Oklahoma was admitted to the Union in 1907, 
the national government provided: 

“That section thirty-three, and all lands heretofore se¬ 
lected in lieu thereof, heretofore reserved under said 
proclamation, and Acts for charitable and penal insti¬ 
tutions and public buildings, shall be apportioned and 
disposed of as the Legislature of said State may pre¬ 
scribe. ,,a 

Chapter 89 of the Session Laws of 1911 provided that 
all moneys that had heretofore been received and all 
that should be received hereafter from the sale or ren¬ 
tals of section 33 and lands granted in lieu thereof, 
should constitute the public building fund. This stat¬ 
ute also provided that not more than $3,000,000 in 
bonds for the construction of public buildings should 
be issued against this fund; that is, as it was necessary 
to immediately construct public buildings, and as the 
receipts from the sale of lands and the other incre¬ 
ments to this fund were not sufficient to do so, the fund 
itself was capitalized and bonds were issued against it. 
The law provided further that the interest and principal of 
such bonds should be paid out of the sale and rental of 
these lands. 

The legislature provided that these bonds should be 
issued in 28 series. Series 1 to 10, inclusive, were for 
$75,000 each; and series 11 to 28, inclusive, were for 
$125,000 each. Bonds were only issued, however, 
through and including Series 24. In Series No. 6 bonds 
numbered from 146 to 150 were cancelled. In Series 
No. 7, bonds numbered from 101 to 150 were cancelled, 
and in Series No. 8 bonds numbered from 109 to 150 

Enabling Act. Sec. 8. 


382 


Government op Oklahoma 


were cancelled, leaving the total outstanding bonds at 
$2,451,500. 10 So far eleven of these series have been paid, 
leaving the following indebtedness: 

Series 12 to 24, inclusive, at $125,000 each, $1,625,000 
The assets of this fund were (June 30, 1920) as fol¬ 
lows 

Notes derived from the sale of lands $2,298,937.10 

Unsold land 376,254.00 

Liberty Bonds 300,000.00 

Cash in Treasury 425,902.26 

Making the total assets $3,400,073.36 

The annual income of this fund, exclusive of sales, is 

about $170,000“ 

It will be seen that there is a net surplus in this fund 
of $1,575,073.36. This surplus does not give a true pic¬ 
ture, however, for this indebtedness is spread out over 
a period of fourteen years. Since this is true, the an¬ 
nual income of this fund, not counting sales of lands, 
will practically pay its liabilities, as they fall due, and, 
with a small appropriation during the next few years, 
this fund could pay all its liabilities and yet remain ab¬ 
solutely intact. The very conservatively estimated in¬ 
come from the fund and the difference between the lia¬ 
bilities and income are shown in the following table: 


Principal Total Estimated 

. Year Payment Interest Annual Income Difference 

Payment 


1923- 4 

1924- 5 

1925- 6 


125,000 75,000 
125,000 68,750 
125,000 62,500 


200,000 160,000 
193,750 160,000 
187,500 160,000 


Deficit 40,000 
Deficit 33,750 
Deficit 27,500 


10 State Bond Register. 

“Report of Commissioner# of tb# Land Office, 1919-1920. 
“Ibid. 



The Funded Debt of the State 


383 


1926- 7 125,000 56,250 181,250 160,000 Deficit 21,250 

1927- 8 125,000 50,000 175,000 160,000 Deficit 15^000 

1928- 9 125,000 43,750 168,750 160,000 Deficit 8,750 

1929- 30 125,000 37,500 162,500 160,000 Deficit 2,500 

1930- 31 125,000 31,250 156,250 160,000 Surplus 3,750 

1931- 32 125,000 25,000 150,000 160,000 Surplus 10,000 

1932- 33 125,000 18,750 143,750 160,000 Surplus 16,250 

1933- 34 125,000 12,500 137,500 160,000 Surplus 22,500 

1934- 35 125,000 6,250 131,250 160,000 Surplus 28,750 

It will thus be seen that by making a very small appro¬ 
priation to this fund for a few years, the principal could 
be maintained absolutely intact. The keeping of this 
building fund intact, as will be shown later on, would 
make possible the construction of most of the public 
buildings required by the state from time to time. It 
would seem expedient, therefore, to recapitalize this 
fund and issue against it additional building bonds. In 
view of the urgent demand for public buildings at the 
present time, it is recommended, therefore, that new 
public building bonds be issued against this fund. 

Perhaps the best way to do this would be to issue new 
sinking fund bonds for a period of twenty-five years, 
or bonds due in 1946. The interest upon this debt 
should be paid from the general fund, while the prin¬ 
cipal could be paid from the income of the public build¬ 
ing fund; since the income of this fund from 1935 (the 
last year in which a payment must be made upon the 
present indebtedness) to 1946 would be sufficient to 
amortize the debt. In other words, the contributions 
to the sinking fund on these bonds should start in 1936, 
the year after the present issue of public building bonds 
will have been paid. The law creating this sinking 
fund should provide that the interest on the sinking 


384 


Government of Oklahoma 


fund moneys shall be invested and shall be added to 
the principal. 

If the annual income of the public building fund is 
figured very conservatively as $160,000, this amount, 
laid aside as a sinking fund for a ten year period, be¬ 
ginning in 1936 would, at 5 percent, produce $1,912,- 
462.80. Thus bonds to this amount could be issued. 
If the income were figured at $163,000 it would produce 
a sinking fund of $2,050,196.48 in ten years. The leg¬ 
islature, therefore, by simply providing for the payment 
of the annual interest from the general fund could ap¬ 
propriate nearly $2,000,000 for public buildings, with¬ 
out increasing the general tax levy. 

By the above plan several good public buildings could 
be built immediately with no cost to the state but the in¬ 
terest (approximately $100,000 a year) and yet the pub¬ 
lic building fund could remain intact. 

STATE FUNDING BONDS OF 1913 

Owing to the failure of certain revenues to produce 
the amounts estimated by the legislature in 1909, the 
state found itself in a position of having issued by the 
end of the fiscal year 1911, $2,907,000 worth of war¬ 
rants which it was unable to pay. Acting un¬ 
der the provisions of Sections 372 to 381 of the com¬ 
piled laws of* Oklahoma of 1909, the governor, the 
secretary of state and the state treasurer applied to the 
district court for permission to fund this indebtedness. 
At the hearing certain citizens protested against this 
funding, mainly on the ground that it violated Sections 
3, 4, and 23, Article X of the constitution. This case j 
was taken, therefore, to the supreme court which over¬ 
ruled these objections, 13 by declaring that the limitations 


3 33 Okla. Reports 797; 40 Okla. Reports 145. 



The Funded Debt of the State 385 

in respect to incurring indebtedness in Section 23 did 
not apply to obligations arising out of the ordinary ex¬ 
pense of government, and that the provision for the pay¬ 
ing of deficiencies which may arise in any fiscal year, 
where the ordinary current expense of the state exceeds 
its income from current taxation and other sources, is 
not exclusive. Following this decision, therefore, bonds 
were issued in 1913 to the sum of $2,907,000. These 
bonds consist of ten series of $290,700 each, lettered 
from A to J. No series is to be paid until 1923 when 
series A becomes due. From then on until 1932 one 
series is to be paid each year. These bonds bear 4 1-2 
percent interest payable semi-annually on April 1st and 
October 1st. The recital upon the bonds provides that 
they may be retired at any time after ten years from 
the date of issue, and this recital also provides for: 

“The collection of an annual tax sufficient to pay the 
interest on the bonds as it falls due, and also to consti¬ 
tute a sinking fund for the payment of principal at 
maturity.” 

No sinking fund for the payment of principal was 
laid aside, however, until 1919, when $161,500 was set 
aside by the board of equalization. 14 The same amount 
was set aside for 1920, 15 and other amounts were later em¬ 
ployed for this purpose, making a total of $914,100 so set 
aside beside the amount appropriated by the legislature to 
pay the interest. 

Since these bonds are serial bonds, the laying aside 
of a sinking fund after the series were due and paya¬ 
ble would seem to be serving no useful purpose. The 
state board of equalization has paid off $914,100 on differ¬ 
ent series of these bonds. Part of this money was paid 

14 Board of Equalization Minutes 1919, Dage 537. 

15 Ibid. page 557. 



386 


Government of Oklahoma 


from the 1908 funding bond sinking fund, and part of it 
from the 1913 funding bond sinking fund. 

In case bond issues are made at any time in the fu¬ 
ture for any purpose, it seems highly inadvisable to pro¬ 
vide for the payment through the use of the combined 
serial bond and sinking fund method. Either the straight 
sinking fund method or a serial bond method should be 
followed. Since, according to present laws, the sinking 
fund moneys draw no interest, it would probably be 
well, except in special cases, to issue only serial bonds. 

The funded per capita debt of Oklahoma is small 16 com¬ 
pared with that of a good many other states, as are also 
the annual debt payments. As Oklahoma’s wealth is very 
great,' 7 placing her about fourteenth from the top in the 
list of states, her condition as a whole is exceptionally 
fortunate. 


16 See F. F. Blachly, Financial System of the State of Oklahoma, 
University of Oklahoma Press, Chapter 1, Schedule VII. 

:7 Ibid. Schedule I. 



CHAPTER All. 


THE APPROPRIATION AND BUDGET SYSTEM 

In a discussion of the appropriation and budget sys¬ 
tem of this state, three main topics should be consid¬ 
ered : 

I. The Constitutional and Statutory Provisions Gov¬ 
erning Appropriations. 

II. The State Budget Law of 1919. 

III. A Criticism of the Oklahoma Budget System. 

CONSTITUTIONAL AND STATUTORY PROVISIONS GOVERNING 
APPROPRIATIONS. 

In the constitution of the state of Oklahoma are 
found the following provisions: 

No money shall be paid out of any state fund or fund 
under state management, except through an appropria¬ 
tion. 1 

No money shall be paid from an appropriation unless 
payment is made within two and onedialf years after 
the passage of the appropriation act. 2 The effect of 
this restriction is to make all state activities not other¬ 
wise provided for by constitutional or statutory provisions 
dependent on legislative approval for their continuation, 
since no legislature can pass a standing appropriation, 
continuing for more than two and one-half years after 
the passage of the act. 

Every law making an appropriation or continuing or 
reviving an appropriation shall distinctly specify the 
sum appropriated and the object of the appropriation. 2 


^Const, Art. 5, Sec. 55. 
Tbid. 

TbM. 


(3S7) 



388 


Government of Oklahoma 


The general appropriation bill may contain only the 
appropriations for the expenses of the executive, legisla¬ 
tive, and judicial departments and for the interest on 
the public debt. 4 This provision requires that there 
shall be at least two appropriation bills, since the ex¬ 
penses of state institutions, etc., cannot be included in 
the general appropriation bill. 

No provision can be made in the general appropria¬ 
tion bill for the increase in salary of any state officer 
or employee, or for the payment of salary to the incum¬ 
bent of any new position, until a law has been passed 
providing for the increase in salary, or creating the 
position and fixing the salary therefor. 5 The effect of 
this provision is that in case any increase in the 
salary or personnel of the executive, legislative or judi¬ 
cial departments is contemplated in making up a bud¬ 
get, such increase must either be provided for by a prior 
law—which in practice would have to be enacted by 
the preceding legislature—unless passed as a special 
emergency measure, or else enacted as a separate ap¬ 
propriation bill, which under the limitation next discussed 
would require a separate bill for each increase. 6 

All appropriations other than those contained in the 
general appropriation bill must be made by separate 
bills, each embracing but one subject, 7 which must be 
clearly described in its title. 8 The effect of this limita¬ 
tion, and the limitation regarding the scope of the gen¬ 
eral appropriation bill, on the procedure prescribed by 

4 Const., Art. V, Sec. 56- 

Tbid. 

T3ryan v. Menefee, 21 Okla. 1, 95 Pac. 471. 

’Const. Art. V, Sec. 56. 

Tbid. Sec. 57. 



Appropriation and Budget System 


389 


the state budget law, will be discussed in connection 
with the provisions of that act. 

All appropriation bills must be submitted to the gov¬ 
ernor, who may disapprove the bill in toto or disapprove 
any particular item or items, while approving the rest. 
Such a veto, total or partial, may be overcome by a two- 
thirds vote of the legislature. 9 

Subject to the special restrictions and limitations im¬ 
posed by the constitution itself, the legislature has the 
right to make appropriations at its own discretion, un¬ 
der the provision that “the authority of the Legislature 
shall extend to all rightful subjects of ' legislation.” 10 
The effect of this and the preceding provision upon the 
development of an efficient executive budget system 
will be discussed later. 

The legislature is specifically forbidden to: 

a. Retire any officer on pay or part pay, or make 
any grant to a retiring officer. 11 

b. Appropriate the public money for the establish¬ 
ment or maintenance of a bureau of immigration. 12 

c. Increase the number or emolument of its em¬ 
ployees except by general law, which shall not take ef¬ 
fect during the term at which such increase was made. 13 

d. Provide for the state becoming a stockholder in 
or making a donation to any company, association, or 
corporation. 14 

e. Appropriate money borrowed by the state for a pur- 

9 Const. Art. VI, Sec. 12. 

10 Const. Art. V, Sec. 36. 

"Ibid. Sec. 47. 

I2 Ibid, Sec. 48. 

ls Ibid. S-ec. 49. 

"Const. Art. X, Sec. 15. 



390 


Government of Oklahoma 


pose other than that specified in the act levying the tax. 10 

f. Appropriate revenue from state taxes for a pur¬ 
pose other than that specified in the act levying the tax. 16 

g. Increase the salary or emoluments of any pub¬ 
lic official during his term of office, except as otherwise 
authorized by the constitution.' 7 

Appropriations may not be overdrawn, thus creating 
deficiencies, except with the written consent of the gov¬ 
ernor. The total of such deficiencies for any fiscal year 
shall not exceed $200,000. Any deficiencies in excess 
of this or debts “created contrary to the provisions 
of the law” are void. 18 

The procedure in the case of deficiencies allowed by 
the governor up to $200,000 in each fiscal year is as 
follows: The governor issues a deficiency certificate 
which is taken up by a bank, and is in the nature of a 
Joan drawing 6 percent interest upon checks actually 
drawn against it from the time at which each check was 
drawn to the time of maturity. All expenses under 
this deficiency are paid by the governor by check oh 
the deficiency certificate account. This system virtually 
makes it impossible to overdraw an appropriation. The 
deficiency certificate acts as a loan as far as the state 
is concerned. As far as the institution is concerned it 
acts as a supplemental appropriation. 

THE STATE BUDGET LAW OF 1919. 

At the regular session of the legislature in 1919, a 
law was passed “to establish a budget system” for the 
state of Oklahoma. ,a This law follows in nearly every 

15 Ibid. Sec. 16. 

lfl Ibid. Sec. 10. 

17 Ibid. Art. XXIII, Sec. 10. 

"S. L. 1919, Ch. 229. 

19 S. L. 1919, Cb. 142. 



Appropriation and Budget System 


391 


respect the Virginia law of 1918. The essential fea¬ 
tures of the system so created are as follows: 

On the first day of November in even-numbered years, 
“each of the several State Departments, bureaus, divi¬ 
sions, officers, commissions, institutions, and other agen¬ 
cies and undertakings receiving or asking financial aid 
from the state of Oklahoma’" must submit to the gov¬ 
ernor an itemized estimate of the amount of money 
needed by them for each of the two immediately succeed¬ 
ing fiscal years. These estimates are to be made on un¬ 
iform forms, furnished by the governor, which are 
to “clearly designate” the kind of information desired. 

On or before December first in even-numbered years, 
the state auditor must submit to the governor estimates 
of the financial needs of the legislative and judicial 
departments of the state. These estimates are to be 
itemized in accordance with the budget classifications 
adopted by the governor, and are to be accompanied 
by a “full and detailed explanation” of all increases 
l or decreases. The legislative estimates are to be certi¬ 
fied to by the presiding officer of each house, while 
the judicial estimates are to be prepared by the state 
auditor, according to the laws governing the expendi¬ 
tures of the judicial branch of the state government. 
These estimates, and the accompanying explanations, 
must be included in the budget, without revision by 
the governor, thus depriving him of control over the 
legislative and judicial expenditures. 

The third step in the budget system is the prepara¬ 
tion by the governor of a “complete and itemized plan 
of all proposed expenditures” of all divisions of the 
state government for the two ensuing fiscal years, and 
an estimate of the money which will become available, 
either from revenues or from loans, to meet these pro- 


392 Government of Oklahoma 

posed expenditures. The information needed by the 
governor in making up the budget is secured in three 
ways. The first source of information is the estimates 
presented by the various state officials, in connection 
with which, as has been stated above, the governor may 
require the submission of such information as he deems 
necessary. The second source of information available 
to the governor is a report which the state auditor is 
required to furnish him on or before the first day of 
November. This report is to contain the following state¬ 
ments classified and itemized according to the budget 
classifications adopted by the governor. 

“1. A statement showing the balance standing to the 
credit of the several appropriations for each depart¬ 
ment, bureau, division, officer, board, commission, insti¬ 
tution, or other agency or undertaking of the State at 
the end of the last preceding appropriation year. 

“2. A statement showing the monthly expenditures 
and revenues from each appropriation account, and the 
total monthly expenditures and revenues from all the ap¬ 
propriation accounts, including special and all other appro¬ 
priations, in the twelve months of the last preceding ap¬ 
propriation year. 

“3. A statement showing the annual expenditures in 
each appropriation account, and the revenues from all 
sources, including expenditures and revenues from spec¬ 
ial and all other appropriations, for each year of the 
last two appropriation years, with a separate column 
showing the increase and decrease for each item. 

“4. An itemized and complete financial balance 
sheet for the State at the close of the last preceding fis¬ 
cal year ending June 30th. 

“5. Such other statements as the Governor shall re¬ 
quest.” 


Appropriation and Budget System 


393 


The governor and his assistants, on or before 
the first day of December in the even-numbered years, 
must have completed a careful survey of the various 
state agencies, such as institutions, departments, bu¬ 
reaus, officers, etc., in order to obtain a working knowl¬ 
edge of the needs of the state. To enable the people 
to have a chance to express their opinion on the budget, 
the governor is directed to provide for public hearings 
“on any and all estimates” to be included in the bud¬ 
get, during the month of November, and to require the 
attendance at these meetings of the heads or responsi¬ 
ble representatives of all agencies, undertakings, or de¬ 
partments, of the state government. 

Within five days after the beginning of each regular 
session of the legislature, the governor must submit to 
the presiding officer of each house printed copies of the 
budget. This budget consists of the complete and item¬ 
ized plan of expenditures and estimate of revenues des¬ 
cribed above. “Opposite each item of the proposed ex¬ 
penditures the budget shall show in separate parallel 
columns the amount appropriated for the last pre¬ 
ceding appropriation year, (and) for the current appro¬ 
priation year any increase or decrease.” Along with 
the budget the governor is required to furnish to the 
legislature certain information for its guidance in con¬ 
sidering the financial program there outlined. This in¬ 
formation, as described in the law, is as follows:— 

“1. A statement of the revenues and expenditures for 
each of the two appropriation years next preceding, 
classified and itemized in accordance with the official 
budget classifications adopted by the Governor. 

“2. A statement of current assets, liabilities, re¬ 
serves, and surplus or deficit of the State. 

“3. A statement of the debts and funds of the State. 


394 


Government of Oklahoma 


“4. A statement showing the Governor’s itemized es¬ 
timates of the condition of the State Treasury as of 
the beginning and end of each of the next two appro¬ 
priation years. 

“5. An itemized and complete financial balance 
sheet for the State at the close of the last preceding fis¬ 
cal year ending June 30th. 

“6. A general survey of the State’s financial and 
natural resources, with a review of the general accounts, 
industrial and commercial condition of the State.” 

Such information is essential to the intelligent and 
adequate consideration of a financial plan for the state 
by the legislative body. At the same time that the gov¬ 
ernor submits the budget to the legislature he is re¬ 
quired to submit a tentative bill covering all appropria¬ 
tions proposed by the budget, “clearly itemized and 
properly classified, for each year in the ensuing biennial 
appropriation period.” As already noted, the constitu¬ 
tion restricts the scope of the “general appropriation 
bill” to the expenses of the executive, legislative, and 
judicial departments of the state government, and to 
the interest on the public debt; and also requires that 
all other appropriations must be made by separate bills, 
each embracing a single subject. These provisions are 
squarely in conflict with the requirement of the law 
that the governor shall submit “a tentative bill” for all 
the proposed appropriations. However, the legislative 
intention could be fully met, and the provisions of the 
law substantially complied with, by the submission, in 
connection with the general financial plan outlined in 
the budget itself, of a general appropriation bill, and 
such other appropriation bills as are necessary, con¬ 
sidering each bill as a “vote” or part of the general 


Appropriation and Budget System 395 

budget, somewhat after the procedure used in connec¬ 
tion with the English budget. 

The final step in the budget system is the considera¬ 
tion of the budget by a legislative committee and ap¬ 
proval or rejection of the budget plan by the legisla¬ 
ture. The law provides for the consideration of the 
budget by the committees of the senate and the house 
of representatives having charge of appropriations, sit¬ 
ting in joint session. These sessions are to commence 
within five days after the submission of the budget to 
the legislature. The joint committee may require the 
attendance of state officials, and the submission of in¬ 
formation by them, and the governor, his representa¬ 
tive, the governor-elect, and all persons interested in the 
estimates under consideration have the right to be pres¬ 
ent and be heard at these meetings. The legislature, 
except in case of emergency, may not consider other ap¬ 
propriation bills until the budget bill has been disposed 
of, and all such bills subsequently considered shall be 
classified in accordance with the classifications in the 
budget. The legislature may increase or decrease, as 
it sees fit, items in the budget bill. 

CRITICISM OF THE OKLAHOMA BUDGET SYSTEM 

A study of the budget law of 1919, as outlined above, 
indicates that it was intended to accomplish two things 
for the state: A. To secure a complete and unified fi¬ 
nancial plan for the state and its activities; B. To se¬ 
cure responsibility in financial planning through an 
“executive” budget. In some respects the act provides 
an admirable opportunity for accomplishing these pur¬ 
poses. It provides for the making of this financial plan 
for the state by the chief executive. It sets up sources 
of information in that it requires estimates from all 


396 Government of Oklahoma 

expending departments; an adequate report from the 
state auditor on the finances of the state as well as 
other statements requested by the governor from him, 
and a careful survey of all state agencies, made by the 
governor and his staff. Other valuable information 
may be secured by the budget staff at the estimate hear¬ 
ings. The legislature is furnished with quite adequate 
information for its guidance in considering the budget 
plan through the estimates submitted to it by the gov¬ 
ernor. Further information may be obtained by the 
legislature through the hearings before its joint com¬ 
mittee considering the budget bill. Finally, this law 
opens the road to the establishment of a real executive 
budget system, if the legislature will refuse to consid¬ 
er any state appropriations other than those proposed 
to it. by the governor. 

Like all new legislation, however, the budget system 
of the state, as now constituted, is susceptible of im¬ 
provement. In fact, there must be a number of changes 
made before a really effective system can be estab¬ 
lished. The most important of these changes will be 
indicated in the succeeding paragraphs. 

In the first place, the law and the constitution fail 
to set up a true executive budget, in which the execu¬ 
tive department will be responsible for making plans for 
the activities of the state, and for devising methods for 
financing them. The legislature is not bound to consid¬ 
er, and to approve or disapprove the financial plans of 
the executive alone, but may, after considering the ex¬ 
ecutive budget, consider and pass other appropriations. 
This makes it possible for the legislature to supplement, 
modify, or even supplant altogether any financial plan 
that the executive might prepare for the state. Fur¬ 
thermore, it hampers and discourages the governor in 


Appropriation and Budget System 


397 


preparing the budget, since any state department, offi¬ 
cial or institution which feels that it has not been given 
all it needs may go over his head and secure additional 
funds from the legislature. This also tends to deter 
the governor from assuming responsiblity for the re¬ 
quest of any department for increased funds, since such 
increases may be secured directly from the legislature 
without being included in the budget. To be truly ef¬ 
fective the law should forbid the legislature from con' 
sidering, except by extraordinary vote, any appropria¬ 
tion that has not been submitted through the governor. 
This, however, would necessitate a constitutional amend¬ 
ment, since, as noted above, the legislature, when not 
specifically restricted by the constitution, has power 
over all rightful subjects of legislation, and may also 
override the governor’s veto by a two-thirds vote. 

Another stumbling block in the road to a true execu¬ 
tive budget is the independence of the state administra¬ 
tive departments. Since they are not responsible to 
the governor, but for the most part derive their au¬ 
thority from the same source as he—the constitution 
and the people—they are to a large extent independ¬ 
ent of him in financial planning, and even were he giv¬ 
en the final word in making financial plans, the carry¬ 
ing out of these plans would still be in the hands of 
independent officials. The governor must be made in 
fact as well as in name the chief executive of the state 
before we can have a true executive budget. This 
same independence of the executive departments may 
render it difficult for the governor to secure the infor¬ 
mation necessary for the preparation of the budget, es¬ 
pecially in the integrating and co-ordinating of the ac¬ 
counting systems of the various state institutions and 


398 


Government of Oklahoma 


financial agencies, since the control over these systems 
is placed in the hands of an independent officer, the 
state examiner and inspector. 20 

Another defect of the present system is that under 
it the outgoing governor prepares the financial plans 
for the first two and one-half years of his successor’s 
term. The new governor, assuming office on January 
first, is operating for the first six months of his term 
under the appropriations made by the preceding legis¬ 
lature, while the budget that is submitted to the incom¬ 
ing legislature, and under which the state govern¬ 
ment will operate for the next two years, has of course, 
been prepared by the outgoing governor. Thus each 
governor is put in the position of operating under the 
plans of another for over half of his term, and also of 
making plans for the conduct of the state government 
for two and one-half years after he goes opt of office, 
a plan which certainly does not make for executive re¬ 
sponsibility. The only remedy, apparently, is to so 
amend the constitution that the new governor will 
take office six months before the legislature meets. 
This could be accomplished by providing that the gov¬ 
ernor shall be elected in April of the year prior to the 
legislative session and shall take office on July first 
of the same year. This would give time for the prepar¬ 
ation of the budget by the incoming governor and 
would make it necessary for him to operate under the 
former governor’s budget for only a few months. 

Still another stumbling block in the road to a really 
responsible executive budget is the existing lack of 
provision for a “showdown” in case of a deadlock be¬ 
tween the governor and the legislature over the finan- 


Tonst., Art. VI, Sec. 10. 



Appropriation and Budget System 399 

cial plans, as presented in the budget. It is true that 
the legislature has the power in the end to substitute 
its own plans for those of the governor if it so desires; 
but if the dispute is of a fundamental nature, these leg¬ 
islative provisions are likely to meet the gubernatorial 
veto which is ordinarily rather difficult to overcome; 
and furthermore, if the governor did not exercise his 
power, or if the appropriations were passed over his 
veto, we should have the situation of the executive be¬ 
ing held responsible for the proper carrying out of 
plans which he did not make, and which he did not 
approve. So long, however, as we maintain the theory 
of an absolute separation of powers between the legis¬ 
lative and executive departments as independent 
branches of government, we cannot hope to do away 
with all chance of deadlock between these departments. 
Some amelioration of this condition, however, could be 
secured by forbidding the legislature by a constitutional 
provision to consider appropriations not recommended 
by the governor, or to increase those appropriations 
recommended by him, except, by an extraordinary vote. 

There should be some provision made for a closer 
coordination between expenditure and revenue planning 
than is provided by the present system. While at pres¬ 
ent the executive must inform the joint committee on 
appropriations of the sources from which it expects to 
secure the revenue necessary to meet the proposed ex¬ 
penditures, any revenue measure that may be intro¬ 
duced will be considered by a separate committee, in¬ 
dependently of the plans for expenditure that are be¬ 
ing approved by the budget committee. It might well, 
happen that a new revenue measure might be so framed 
by such an independent committee as to interfere ser¬ 
iously with the plan for expenditures approved by the 


400 


Government of Oklahoma 


budget committee and adopted by the legislature. The 
general lack of coordination at present between the 
planning of revenue. and of expenditure has been one 
of the chief points made in favor of the adoption of an 
executive budget system by the state and national gov¬ 
ernments ; and, in order to secure such coordination, 
the Oklahoma system should be so amended as to pro¬ 
vide for the submission by the governor, in connection 
with his plans for expenditures, of copies of tentative 
bills for any changes in the revenue laws that he may 
deem essential to that plan, and for the consideration of 
these bills by the budget committee. 

The preparation of the first state budget in 1919 
was seriously hampered by the failure of the legis¬ 
lature to provide the funds necessary for the employ¬ 
ment of an adequate staff to assist the governor in 
making the survey of state departments and institu¬ 
tions which is provided for by section 6 of the budget 
act. This defect is not inherent in the provisions of the 
act itself, but is entirely due to lack of proper financial 
support. To carry out the spirit and purpose of the 
budget law, it is essential that the legislature make 
adequate financial provision for securing the informa¬ 
tion that is necessary to the executive in order to make 
financial plans intelligently. The 1923 legislature (iS. L,, 
ch. 48) provided for a budget officer to assist the governor 
in the preparation of the budget; and this step in the right 
direction may well be followed by further progress toward a 
scientific budget. 


CHAPTER XIII. 


REGULATION OF BUSINESS AND LABOR. 

The .regulation of business occupies a place of rapidly 
increasing importance among the problems of govern¬ 
ment. The complexity of modern commerce, the growth 
of combinations and “trusts,” the increasing inability 
of the individual to protect his interests against the 
encroachment of powerful combinations, have led to the 
enactment of anti-trust legislation on the one hand and 
inspection and regulatory laws on the other. The de¬ 
pletion of natural resources when given over to un¬ 
hindered exploitation by private interests requires the 
adoption and enforcement of a policy of conservation. 
The changed relations between employer and employee 
have caused additions to our statutes, and the creation 
of new administrative authorities. Many of these new 
commercial and industrial problems have not yet been 
satisfactorily solved, and will probably furnish an in¬ 
centive to further governmental experimentation in the 
future. 

State regulation of business may be administered in 
two ways. The first is by the enactment of regulatory 
laws, very specifically delimiting the policy to be adopt¬ 
ed, and leaving their enforcement to the civil and cri¬ 
minal courts in the ordinary routine of their duties. 
The second is merely to indicate by law the general 
policy to be followed, and to vest the detailed enforce¬ 
ment of this policy in the hands of administrative 
agencies with authority to make such special rules as 
from time to time may prove necessary to such en- 


( 401 ) 


402 


Government of Oklahoma 


forcement. 1 Both methods have been employed in Okla¬ 
homa. What businesses should be subject to regulation, 
what this regulation should be and how it should be 
administered are questions of policy to be determined 
by the people of the state and their representatives. 
The scope of this chapter is to describe briefly the ex¬ 
tent of business regulation in Oklahoma and the man 
ner in which it is administered, from a governmental 
viewpoint. 

Very strict rules seeking to prevent the abuse of cor¬ 
porate power are established by both the constitution 
and the statutes. A large part of Article IX of the con¬ 
stitution is devoted to the rights, duties and liabilities 
of public service corporations, and the establishment 
of a corporation commission to administer these provi¬ 
sions. 2 The constitution also contains several provisions 
applying to private corporations. 3 The laws relating to 
corporations prescribe very carefully the method of or¬ 
ganization, conditions upon which domestic companies 
may be formed or foreign corporations admitted to the 
state, the extent of corporate powers and the manner 
in which they may be exercised. 4 A stringent anti-trust 
law forbids, under heavy penalties, combinations in re¬ 
straint of trade, monopolies, discrimination and unfair 
competition. 5 

Oklahoma’s mineral wealth has induced the promo¬ 
tion of many highly speculative mining, oil and refining 
companies, some of them doubtless formed in good faith 

^or ai\ excellent discussion of the advantages of adminis¬ 
trative regulation over purely legal regulation see J. T. Young, 
New American Government and Its Work, pp. 168-171. 

2 See Chap. VI. 

8 Const. Art. IX, Sees. 38-47. 

4 See. Rev. Laws 1910. Chap. 15. 

"See Rev. Laws 1010, Chap. 79. 



Regulation of Business and Labor 


403 


but with poor judgment, others with no motive in view 
but to extract dollars from the pockets of unwary in¬ 
vestors. To protect the public from these “blue sky” 
schemes, the seventh legislature enacted a law regulat¬ 
ing the sale of certain classes of securities. 6 Briefly 
stated, its provisions are as follows. The law defines 
“securities” as including stock certificates, bonds, de¬ 
bentures, certificates of participation, membership con¬ 
tracts or bonds for the sale and conveyance of land on 
deferred payments. “Speculative securities” are: 1. Se¬ 
curities for the purchase of which extraordinary gain 
is offered as an inducement. 2. Securities for the sale 
of which a commission of more than ten per cent is 
offered or paid. 3. Securities in the par value of which 
the hazard of speculative profit is predominant. 4. Se¬ 
curities the value of which materially depends on fu¬ 
ture developments. 5. Securities of a corporation which 
includes in its assets as a material part thereof pat¬ 
ents, formulas, good will, promotion or intangible assets. 
6. Securities issued to promote the sale of undeveloped 
land outside of Oklahoma. A state issues commission 
is created, consisting of the state bank commissioner, 
the secretary of state and the state auditor. Any in¬ 
dividual, partnership or corporation wishing to sell or 
offer for sale speculative securities within the state of 
Oklahoma must, before doing so, secure a permit from 
the state issues commission. As a prerequisite to the 
issuance of this permit, there must be filed with the 
commission a copy of the articles of incorporation of 
the company issuing the securities, a copy of the form 
of the securities, full details concerning them, informa¬ 
tion concerning the assets, liabilities, prospects, pro¬ 


's. B. 1919 Chap. 49. 




404 


Government op Oklahoma 


posed modus operandi and business plan, stockholders, 
directors, etc. of the corporation whose securities are 
to be sold, and a full account of the procedure by 
which it is proposed to sell them, a list of selling agents, 
etc. A bond equal to ten per cent of the value of the 
securities must be filed with the commission, condi¬ 
tioned on non-compliance with the provisions of the 
act, to which persons injured by such non-compliance 
may resort for compensation. A commission of not more 
than 15 per cent may be paid for the sale of any se¬ 
curities. The issues commission is to make a full and detailed 
examination into the business which issues the securities 
before granting a permit for their sale, such examina¬ 
tion to be at the expense of the promoters. A subsequent 
examination may be made by the commission on its 
own motion at any time. Criminal penalties, both cor¬ 
porate and individual, are prescribed for a violation of 
the provisions of the act. 

That the law has accomplished its purpose is very 
clear. The newspapers no longer are filled with lurid 
predictions of infallible profits. The glib-tongued stock 
salesmen who infested the land have vanished. How¬ 
ever, there are some changes that might well be made 
in the law. For instance, certain provisions, such as the 
requirement of extremely detailed reports, the unre¬ 
stricted right of examination at the discretion of the 
commission, the limitation of the compensation paid 
to agents, and the tying up of capital in the bond, im¬ 
pose a burden which tends to keep out legitimate com¬ 
panies as well as illegitimate. If these provisions can 
be modified in such a way as not to impose so heavy a 
burden upon honest speculative concerns, without let¬ 
ting down the bars to the whole host of “wildcat” cor¬ 
porations, this should be done. Moreover, there is no 


Regulation of Business and Labor 


405 


good reason for creating a special administrative de¬ 
partment to care for this activity, especially if that de¬ 
partment is to be placed in the charge of an ex officio 
board whose members have their time fully occupied 
by the duties of their regular positions. It would seem 
that this duty might well be entrusted to a bureau in 
some other department, preferably that of banking, or 
in case of a reorganization of the state government, in 
a consolidated department of finance. 

Banking and allied businesses, because of their great 
importance to the community and the difficulty of self¬ 
protection on the part of those dealing with them, are 
especial objects of state regulation. The Oklahoma con¬ 
stitution directs the legislature to establish a “Bank¬ 
ing Department/’ under a commissioner to be appointed 
by the governor, with power to regulate all state banks, 
loan, trust and guaranty companies, “under laws which 
shall provide for the protection of depositors and in¬ 
dividual stockholders.” 7 Pursuant to this direction, the 
first legislature enacted a complete banking law, which 
with various modifications continues in force today. By 
the law, the right to engage in the business of bank¬ 
ing is restricted to corporations organized under its pro¬ 
visions. 8 National banks are expressly excepted from 
this requirement, since the state has no right to for¬ 
bid them from doing business. 9 Requirements as to capi¬ 
tal stock, number of stockholders, contents of articles 
of incorporation, etc., are prescribed by the law. 10 In¬ 
corporation is effected by filing articles of incorpora¬ 
tion, properly executed, with the secretary of state, 

’Const. Art. XIV. Sec. 1. 

8 R. L. 1910, Sec. 272. Bunn Supp. Sec. 272. S. L. 1915, Oh. 58 Sec. 2. 

“McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579. 

l0 R. L. 1910, Ch. 6 Art. 1. 



406 


Government of Oklahoma 


but before any banking business may be transacted, a 
certificate of authority must be obtained from the state 
bank commissioner, issued on showing that the organi¬ 
zation has been according to law and that the capital 
stock has been fully paid in. The issuance of the certi¬ 
ficate is, however, purely discretionary. 11 

After organization, banks are subject to the control 
and supervision of the state banking department, and 
to the legal regulations governing the conduct of their 
business. The banking department functions through 
a state bank commissioner and a state banking board. 
The commissioner must have had five years experience 
in banking, but after his appointment must not be con¬ 
nected in any way with any .bank. He is appointed by 
the governor with the advice and consent of the sen¬ 
ate for a term of four years, and receives a salary of 
$4,000.00 per year. The state , banking board consists 
of the bank commissioner and three members, appoint¬ 
ed by the governor from a list of nine submitted by 
the executive committee of the state bankers’ associa¬ 
tion. 12 Both the commissioner and the board may be 
removed by the governor for cause, and the aforesaid 
executive committee has power to recommend their re¬ 
moval. The banking board and the commissioner to¬ 
gether are charged with the enforcement of the state 
banking law. 

Every state bank must be examined by a representa¬ 
tive of the banking department twice each vear and 
may be examined oftener, if necessary. 14 Annual and 

R. L. 1910, Sec. 258, Bunn Supp. Sec. 307d S L 1918 Oh 90 
Sec. 8. ' 

“Bunn. Supp. S<jc. 298. 307a S. L. 1913, C/h 22 Sec 1 Sec 3 
S L. 1915, Ch. 58, Sec. 3. ’ ’ 

’’Bum, Supp. Sec. 3071) S. L. 1913. Oh. 22. Sec. 5 
“Bunn. Supp. Sec. 307f S, L. 1913, Ch. 22. Sec. 10. 



Regulation of Business and Labor 


407 


quarterly reports of the bank's financial condition must 
be rendered, and special reports may be required at 
any time . 15 With these inspections and reports as a basis, 
the bank commissioner may exert considerable author¬ 
ity over the banks. He may require a bank to increase 
its capital stock or to cease receiving deposits in case 
its deposits are over ten times as large as its capital 
and surplus . 16 He may require the removal of dishonest, 
reckless or incompetent officials . 17 He may require the 
capital to be replaced in case it becomes impaired . 18 He 
may revoke the charters of banks for disobeying the 
state banking law , 18 and is to take charge of the assets 
and wind up the affairs of such banks, as well as of those 
which become insolvent . 20 

Recognizing the inability of individual depositors to 
protect themselves adequately against the risks of bank 
failure, Oklahoma was the first state to adopt the pol¬ 
icy of guaranteed bank deposits . 21 Briefly, the system 
is as follows: A compulsory annual assessment, amount¬ 
ing to one-fifteenth of one percent of the average daily 
deposits is levied on all state banks . 22 This assessment 
is administered by the state as a trust fund for the de¬ 
positors in insolvent state banks. When a bank fails, 
the department takes charge of the assets and winds 
up the business, paying depositors out of the current 
assets. If, as is usual, these prove insufficient to pay 

15 R. L. 1010, Secs. 273, 274, 290. 
ltt R. L. 1910, Sec. 259. 

1T R. L. 1910, Sec. 288. 

1S R. L. 1910, Sec. 263 
19 R. L. 1910, Secs. 264, 267. 

20 R. L. 1910, Secs. 264, 279, 291, 302, 304 Bunn. Supp. Sec. 
307s; S. L. 1915, Ch. 58, Sec. 5. 

21 T. B. Robb. The Guaranty of Bank Deposits. Chap. 3 
J2 R. L. 1910. Se^, 299. 



408 


Government of Oklahoma 


the depositors in full, the deficit is made up from the 
guaranty fund, which is reimbursed as far as possible 
by realization upon the “long time” assets, and by en¬ 
forcement of the double liability of stockholders. In 
case the guaranty fund is so depleted by bank failures 
as not to be able to meet claims of the depositors, there 
is no recourse or liability against the general revenue 
of the state, but means are provided by the sale of 
interest-bearing certificates, payable out of future re¬ 
ceipts of the fund . 23 

It will be seen that this is not a true state guarantee 
of bank deposits, but rather a system of compulsory 
depositors' insurance, administered by the state. This 
insurance cannot stand the strain of excessive losses 
any more than the other form of insurance. As has 
been pointed out by Dr. Robb , 24 such a system, when 
successful, furnishes a safeguard against the chances 
of loss through bank failures which no individual de¬ 
positor can provide for himself. But it requires for 
successful operation stringent banking laws and strict 
inspection and law enforcement, in order to reduce fail¬ 
ures to the minimum. If these requirements are met 
the guarantee system and the state banking system will 
perform adequate service to the public; if they are not 
met, both will fail. 24a 

The state banking department is also given jurisdic¬ 
tion, similar to that exercised over banks, over the af¬ 
fairs of trust companies and building and loan associa- 

“Bunn Supp. Sec. 299 S. L. 1911. Oh. 31, Sec 3 S T iQiq 
Oh. 22, Sec. 6. ’ * 

^Robb, op. cit. Ohap. 8 and 9. 

^ Since this was written, the act establishing the depositors’ gnar- 
; mt ^ 1 f !! ndhas been re P^led (S. L. 1923, Ch. 137), but obligations and 
iiaoilities incurred under its provisions are still binding. 



Regulation of Business and Labor 


409 


tions. For a detailed description of this regulation the 
reader is referred to the laws of the state . 25 Extended 
comment here is deemed unnecessary. 

PAGE 301 

Insurance, like banking, has long been one of the 
principal objects of state regulation. The peculiar func¬ 
tion of insurance renders necessary, in the interest of 
safety, a supervision which individual policy holders 
cannot supply. In Oklahoma, an insurance department 
is established by the constitution, and charged with the 
execution of all laws relating to insurance and insurance 
companies . 26 The office of commissioner of insurance is 
created. The incumbent is elected by popular vote for 
a term of four years and must be twenty-five years of 
age and “well versed in insurance matters .” 27 He is re¬ 
quired to give bond and is to have such further quali¬ 
fications and perform such further duties as may be 
prescribed by law. So far, the legislature, while by no 
means backward in prescribing duties for the commis¬ 
sioners, has not created any new qualifications. 

There are a number of conditions attached by the 
law to the privilege of engaging in the business of in¬ 
surance. All insurance companies must secure a per¬ 
mit to do business, issued only after examination into 
their affairs . 28 Foreign insurance companies must pay 
special taxes, agree to pay all taxes imposed by the 
legislature, to designate the insurance commissioner as 
attorney on whom process may be served, and to comply 

2S Bunn Supp. Chap. 15, Art. 8a. R. L. 1910, Chap. 6, Art. 3, 
S. L. 1913, Oh. 200; S, L. 1919, Chap. 168. 

“’Const. Art. VI, Sec. 22. 

37 Const. Art. VI. Sec. 23-24. 

8 R. L. 1910, Sec. 3412. 



410 


Government of Oklahoma 


with numerous other constitutional and statutory re¬ 
quirements . 29 

A standard form of fire insurance policy is required . 1 
Shorter forms may be used, but only with the consent 
of the insurance commissioner . 31 For other types of in¬ 
surance the law prescribes certain things which the pol¬ 
icies must contain and requires all policy forms to be 
approved by the commissioner or by the insurance 
board . 32 Insurance agents must be licensed by the de¬ 
partment . 33 Companies may combine only with the ap¬ 
proval of the insurance commission . 34 To insure compli¬ 
ance with the statutory requirements as to the conduct 
of their business, provision is made for examination and 
inspection of all insurance companies by the commis¬ 
sioner, and for the assessment of penalties in case of 
violation of the law . 35 

Fire, tornado, plate glass insurance companies, surety 
companies, and rating bureaus are singled out for spe¬ 
cial regulation and put under the control of the state 
insurance board, composed of the insurance commis¬ 
sioner, the state fire marshal, and a secretary appointed 
by the governor, with the advice and consent of the 
senate . 36 This commission licenses the agents, approves 

’’Const. Ant. XIX; R. L. 1010. See. 3422-3456 incl. R. L. 
1010. Chap. 38. 

30 R. L, 1910, Sec. 3481. 

31 R. L. 1910, Sec. 3483. 

32 R. L. 1910, Sec. 3473; Bunn Supp. 347Sn S. L. 1915, Oh. 
174, Sec. 14. 

^R. L. 1910, Sec. 3429, Bunn Supp. Sec. 3478 i-j, S. L. 1915 
Ch. 174, Secs. 9, 10. 

34 Bunn Supp. Chap. 38, Ant. VI F. S. L. 1915 Ch. 70. 

35 R. L. 1910, Sec. 3413-3416, 3484-3489. 

36 S. L. 1915, Cl}, 174, Sec. 1: Bunn Supp. Sec. 3478a. 



Regulation of Business and Labor 411 

the policy forms, and regulates the rates of such com¬ 
panies . 37 

The constitution requires special provision to be made 
for the regulation of fraternal insurance associations 
and mutual farm or trades insurance associations . 38 Ac¬ 
cordingly, the law defines fraternal insurance associa¬ 
tions , 39 and imposes certain regulations upon their opera¬ 
tion, different from those placed on other insurance 
organizations. They must secure an annual license, 
make reports, are subject to examination and must base 
their reports upon a standard mortality table which is 
incorporated in the statutes . 40 The regulation of these 
organizations is vested in the fraternal insurance board 
which consists of the insurance commissioner and four 
members appointed by the governor subject to sena¬ 
torial confirmation. They hold office for four years, and 
must be members of fraternal insurance societies doing 
business within the state. They may be removed by the 
governor at his pleasure . 41 Mutual insurance companies 
have no special regulatory body, but are under the general 
control of the insurance commissioner. The legislature 
has by law provided for the organization of several classes 
of such companies. 

The importance of labor and industrial relations in 
modern political problems is exemplified by the laws 
dealing with these subjects. The constitution creates a 
department of labor in charge of a commissioner chosen 
by the people for a term of four years. The duties of the 
commissioner are left to be prescribed by law . 42 The stat- 

37 Bunn Supp. Sec. 3478b-3478y S. L. 1915, Ch. 174, Secs. 2-22. 

38 Const. Art. XTX, Sec. 2. 

39 R. L. 1910, Sec. 3486. 

10 R. L. 1910, Sec. 3487-3499. 

41 S. L. 1919, Onap. 67. 

42 Const. Art. VI. Sec. 20. 



412 


Government of Oklahoma 


utes 43 divide the work of the department among four bur¬ 
eaus: Statistics, arbitration and conciliation, free em¬ 

ployment and factory inspection. The functions of the 
bureau of statistics need no detailed comment. The bureau 
of arbitration and concilation was established in accordance 
with a constitutional direction . 44 It is in charge of a board, 
consisting of the commissioner of labor as ex officio chair¬ 
man, and six members appointed by the governor and con¬ 
firmed by the senate. Of these members, two farmers and 
one employer are named by the governor on his own in¬ 
itiative, while one employer and two employees are named by 
him on the recommendation of the commissioner of labor. 
The representatives of employers and employees upon the 
board must have been connected with the mining, manu¬ 
facturing, transportation or mechanical industries of the 
state for three years preceding their appointment. The 
term of the appointive members coincides with that of the 
governor who appoints them. The jurisdiction of the board 
extends to strikes involving twenty-five or more persons. 
In case such a strike is threatened, or occurs, in any local¬ 
ity, it is the duty of the mayor of the town or of the justice 
of the peace of the municipal township, and of the chief 
executive of the labor organization involved, to notify 
the board of the fact. It is then the duty of the board 
to attempt to induce the parties to submit the dispute 
to it for arbitration. In case of a refusal, if the strike 
is likely to cause public injury or inconvenience, the 
board may on its own motion investigate, and make and 
publish its findings as to what would be a fair and 
equitable settlement of the dispute. This machinery has 
not proved very effective as an aid to industrial peaice. 
In the major industrial disputes which have occurred 

43 R. L. 1910, Sec. 3703. 

’‘"'Const. Art. VI. Sec. 21. 



Regulation of Business and Labor 


413 


the board has been politely ignored. It has not the pro¬ 
per equipment in the shape of a technical staff and 
facilities for gaining information sufficient to fit it for 
adjusting problems of industrial relationships, and it 
has no power to enforce its decrees. So far the search 
>for an efficient, just and satisfactory method of dealing 
with industrial disputes seems to have met with little 
success in any state, and presents one of the problems 
which must be solved in the future. 

The bureau of free employment maintains a central 
office at Oklahoma City and branches at Enid, Musko¬ 
gee and Tulsa. 45 It has proved of considerable value to 
both workmen and employers in bringing the man and 
the job together. 

Many state laws have been passed for the protection 
of labor. 45 Among these are acts regulating the employ¬ 
ment and working conditions of women and children, 
establishing the eight hour day for public works, re¬ 
quiring the places where workers are employed to be 
kept in a safe and sanitary condition, and requiring 
the furnishing of certain conveniences, etc. The en¬ 
forcement of these laws is for the most part vested 
in factory inspectors employed by the department of 
labor. The inspection of mines and the enforcement of 
the state laws applying to them is vested in a chief 
mine inspector and three assistants, all elected by the 
people. 47 

In 1915, the legislature enacted a workmen’s com¬ 
pensation law, 48 which was amended and re-enacted in 

45 S. L. 1919, Chap. 211. 

4 Tt. L. 1910, Chap. 42, Articles III, V. 

47 €onst, Art. VI, Sections 25, 26, R. L. 1910, Section 3986 ff. 

48 S. L. 1915, Chap. 246. 



414 


Government of Oklahoma 


1919 and also in 1923. 40 The law applies to “hazardous 
employments” which are very fully defined by it. The 
right of action for personal injuries sustained by an em¬ 
ployee in these industries is, with certain exceptions, abol¬ 
ished, and instead a definite scale of compensation for 
injuries, to which an injured employee is entitled as a mat¬ 
ter of right, is established. An injury inflicted wilfully, 
either by the injured employee, or by some other person, 
or by a wilful failure to use a safety device provided by 
the employer, or resulting from intoxication, is excepted 
from the operation of the act. The enforcement of the law 
and the settlement of claims arising out of it is vested in a 
state industrial commission of three members, appointed by 
the governor with the advice and consent of the senate. 
The term of commissioners is six years, one retiring every 
two years. Employers must secure the payment of com¬ 
pensation to injured employees, either by carrying in¬ 
surance in an approved company, or, by permission of 
the commission, carrying their own risk. 50 

This concludes the survey of the chief classes of busi¬ 
ness regulation at present existing in Oklahoma and 
not elsewhere considered in this book. The survey has 
necessarily been superficial, as a thorough treatment 
of the subject would require a volume in itself. The 
wisdom of any general policy of regulation presents a 
political, social and economic problem which must be 
referred to the people and their leaders for solution. 
As regards the governmental phase of regulation, name¬ 
ly, its administration, it seems that the chief improve¬ 
ment that is needed is concentration of responsibility. 

+s S. L. 1919, Chap. 14: as amended by S. L. 1923, Ch. 61. 

"For a discussion of the theory underlying 1 workmen’s com¬ 
pensation laws see J. T. Young, The New American Government and Its 
Work, pp. 377-381. 



Regulation of Business and Labor ' 


415 


Authority and responsibilty are scattered among so 
many different agencies at present that it is practically 
impossible to hold any one responsible for the way in 
which state regulation is carried out. The final chapter 
deals with a proposed reorganization of state adminis¬ 
tration, and the reader is referred to it for suggestions 
as to how these functions may be organized in order to 
combine efficiency and responsibility with democracy. 


CHAPTER XJV. 


PUBLIC HEALTH ADMINISTRATION 

In Article V, Section 39, of the Oklahoma constitu¬ 
tion, the following sentence is found: “The Legislature 
shall create a Board of Health, Board of Dentistry, 
Board of Pharmacy, and Pure Food Commisssion, and 
prescribe the duties of each.” 

Acting upon this authority, the legislature has es¬ 
tablished a state board of health in charge of a state 
commissioner of health, who is appointed by the gov¬ 
ernor for a term of four years, coinciding with the gov¬ 
ernor’s own term of office. The commissioner receives 
a salary of $3,600 per annum, together with an allow¬ 
ance for records, printing and traveling expenses. * 2 His 
powers include the administration of oaths when neces¬ 
sary in the discharge of his duty, 3 and the “power to 
make and enforce any and all needful rules and regu¬ 
lations for the prevention and cure, and to prevent the 
spread of, any contagious, infectious or malarial di¬ 
sease among persons; to establish quarantine and isolate 
any persons affected with contagious and infectious di¬ 
seases; to remove or cause to be removed any dead, 
decaying or putrid body, or any decayed, putrid or other 
substance that may endanger the health of person or 
domestic animal; to condemn or cause to be destroyed 
any impure or diseased article of food that may be 
offered for sale; to superintend the several boards of 
health in the counties, cities, villages, towns, and town- 

*R. L, 1910, Sec. 6786. 

Tbid. 6789, as amended by Ch. 274, H. B. 471, S. L. 1919. 

3 R. L. 1910, Sec. 6786. 



Public Health Administration 417 

ships; to establish rules and regulations for the keep¬ 
ing and reporting of all vital statistics, births, deaths, 
marriages and divorces as provided by this article.” 4 
Another section of the public health laws 5 gives the 
state commissioner power to go in person or send a 
physician or health officer to any place where the pres¬ 
ence of contagious disease makes such a move advis¬ 
able, and to “take such legal steps as he may deem 
necessary to protect the public health of the state or 
of such locality.” 

The duties of the state board of health are laid down 
as follows: 6 “It shall be the duty of the State Board of 
Health, under the provisions of this article, to quaran¬ 
tine against outside territory known to be infected with 
contagious or infectious diseases; to take charge of dis¬ 
tricts or localities in the state infected with any con¬ 
tagious disease, and enforce such rules and prescribe 
such measures as it may deem necessary to prevent the 
spread of the same or to suppress it; to take proceed¬ 
ings to have abated a nuisance calculated to affect in¬ 
juriously the health of the public or any community; to 
take cognizance of the interest of health and life among 
the citizens of the state, make sanitary investigations 
and inquiries relative to the cause of disease, and es¬ 
pecially of epidemics, the source of mortality, and the 
effects of localities, employments, conditions and cir¬ 
cumstances upon the public health; to investigate the 
sanitary conditions of schools, prisons, public institu¬ 
tions, mines, railroads and street cars and all build¬ 
ings and places of public resort, and to recommend, 


“Ibid. 6787. 

5 Ibid. 6803. 

8 Ibid. 6788. 



418 


Government of Oklahoma 


prescribe and enforce such measures of sanitation for 
them as may be deemed advisable; to advise the state 
and all local governments in all hygienic matters; to 
act in conjunction with city, town and township boards 
of health; and to make a report in writing to the Gov¬ 
ernor twenty days preceding each regular and special 
session of the Legislature upon the sanitary condition, 
prospect and needs of the state, setting forth the action 
of the Board, all its expenditures since the last pre¬ 
ceding report, and such other matters as it may deem 
proper for the promotion of health or the prevention 
of disease, which said report shall be laid before the 
Legislature by the Governor at its ensuing term.” 

Duties of various kinds have been added by law from 
time to time. A law of 1917 7 provided for the regis¬ 
tration of vital statistics. These statistics are collected 
by local registrars in each registration district, upon 
forms and certificates prescribed by law; and are com¬ 
piled by the state registrar. Each city, incorporated town 
and township constitutes a primary registration district, 
two or more of which may be combined at the discretion 
of the state health commissioner. 8 Though the title of 
the law speaks of registering births, deaths and marriages, 
only births and deaths are included in its text. A bureau 
of vital statistics in the state health department handles 
this work. 

In 1928 the legislature accepted the provisions of the 
United States Act of 1921, “for the promotion of the wel-/ 
fare and hygiene of maternity and infancy” commonly 
called the Sheppard-Towner Bill; and directed the state 
board of health “to cooperate through its Division of Child 
Hygiene (now known as the Bureau of Maternity and In¬ 

’s. L. 1917, Ch. 168. 

8 Btmn Supp. 1918, 6985, y, x, z, 1. z 2. 



Public Health Administration 


419 


fancy) in the administration of the Act of Congress afore- 
said.” (Senate Bill No. 83). It also appropriated $21,- 
370.52 for the work of the Bureau, for each of the next 
two years (1924, 1925). Contributions from the federal 
government will make the total funds available $45,050 a 
year. 

A law of 1919 9 provides for the treatment of venereal 
diseases and requires the examination for such diseases 
of all persons confined, after conviction, in penal in¬ 
stitutions. In the case of city prisoner^, if the examina¬ 
tion reveals the presence of such diseases they are 
treated by the city. After the expiration of the prison 
sentence, the person being treated must be kept at the 
prison or at some other suitable place for treatment un¬ 
til pronounced cured by a physician and discharged by 
the health authorities of the state. In case such per¬ 
son is unable to pay for the treatment, it is paid for 
by the division of government in whose prison the af¬ 
flicted person was confined. Municipal health officers 
'as well as those of the state and county are “directed 
and empowered when in their judgment it is necessary 
to protect public health, to make examinations of per¬ 
sons convicted of sex offenses and to detain such per¬ 
sons until the results of such examination are known.” 
This work is done directly by the local government 
units; but the state board of health is the final au¬ 
thority with whom rests the power to retain or discharge 
persons who have been held for treatment. 

For two years a bureau of venereal diseases, cooperat¬ 
ing with the state board of health, and supported jointly 
by the state of Oklahoma and the federal government, did 
valuable work in treating venereal diseases through clinics 


\S. L. 1019. Ch. 17. 



420 


Government of Oklahoma 


held at several cities, and in educating the public in re¬ 
gard to them. The grant made by Congress has not been 
renewed, and the eighth legislature made no provision for 
the continuance of the work; except an appropriation of 
$15,000 for prevention and treatment, not more than $3,- 
000 of which is to be spent in any one county. The ninth 
legislature appropriated $20,000 as a contingent fund to 
be expended under the direction of the state health com¬ 
missioner for the prevention and cure of venereal diseases. 

The examination of public water supplies is under 
the control of the state board of health. Whenever 
complaints are made to this board by any city executive, 
by any county health officer pr by a local board of 
health, in regard to the sanitary quality of the water 
supplied to the public for domestic and drinking pur¬ 
poses, it is the duty of this board to investigate the 
character of the water supply. The board may also, 
upon its own initiative, make investigations. In either 
of these cases, the board of health is authorized to make 
an order requiring change in either the source of sup¬ 
ply, manner of storage, the method of purification and 
treatment, or all of these, if necessary. Here an appeal 
lies to the district court. 10 

Further control over water supplies is given by the act 
of 1917, 11 which requires that every municipal corpora¬ 
tion, etc., supplying or authorized to supply water to 
the public within the state, shall file with the state 
board of health a certified copy of its plans and sur¬ 
veys, with a description of the source from which the 
supply is derived. No additional source may be used 
thereafter without a written permit from the state 


10 S. L. Okla. 1917, Ch. 166. 
“Ibid. 



Public Health Administration 421 

board of health. 13 No “person, company, corporation, 
institution or municipality’" may supply water or let a 
contract for the construction of waterworks used in sup¬ 
plying water for domestic purposes to the public, with¬ 
out a written permit from the state board of health. 
All applications must be accompanied by certified copies 
of maps, plans and specifications as well as “a descrip¬ 
tion of the design of the system source,” the manner of 
storage, the degree of purification of the stream pro¬ 
posed for the supply, and other data that may be re¬ 
quired by the board of health. No changes may be 
made in the system without a permit from the state 
board of health. 13 Appeals lie from the decisions of the 
board of health to the district court of the county in 
which the system is located. The court has the right to 
set aside, or modify, the order of the board of health, 
or fix the terms upon which the permit will be granted. 14 

Section 4 of this act forbids the construction of sewer 
systems, or sewage disposal or treatment plants, by a 
municipality or by others, without a written permit from 
the state board of health. Plans, maps, and specifica¬ 
tions must be furnished, together with a “complete de¬ 
scription of the designs of the system, sewer outfall and dis¬ 
posal or treatment plant.” 

Whenever complaints are made to the state board of 
health by city officials or other health officials, regard¬ 
ing the pollution or polluted condition of waters within 
the state, the board is required to make an investigation. 
When the board determines that such pollution exists, it 
has the authority to require the pollution to be done 
away with within a reasonable time. In case the munici- 


12 Ibid. Sec. 2 
13 Ibid. Sec. 3 
14 S. L. 1917, Ch. 166. 



422 


Government of Oklahoma 


pality considers that the requirement is illegal, unjust or 
unreasonable, it may appeal for relief to the district 
court of the county in which the pollution occurs." 

The state board of health, under certain conditions, 
may permit the discharge of sewage into the waters 
of the state. Those systems already discharging sew¬ 
age into the waters may continue to do so until in the 
opinion of the state board of health the time shall have 
come when the practice is dangerous to the public 
health. 16 

The state board of health exercises its control over water 
supplies and sewerage systems through a bureau of sanitary 
engineering. r 

Despite the constitutional requirement that the legisla¬ 
ture shall establish a pure food commission,” no separate 
organization outside of the state board of health has been 
set up. The bureau of pure food, drug and sanitary inspec¬ 
tion in the board of health “looks after the inspection of 
hotels, cafes, drug stores, grocery stores, meat markets, 
soda fountains, and all places where food and drink is 
stored * * Samples of suspicious looking food are collected 
and sent to the laboratory for analysis * * much filthy, de¬ 
composed or putrid food * * is condemned and destroyed.” 18 
The 1923 legislature divided the state into four districts 
for the purpose of such inspection, and provided for one 
supervisor and two inspectors in each district. 

The state laboratory, for the analysis of foods, drugs, 
and medicines under the supervision of the state com¬ 
missioner of health, examines and analyzes “such arti¬ 
cles of food, drugs and medicines as are sent to the said 

- 1! S. L. 1017, Oh. ICG. 

"•Const. Art. V, Sec. 39 

“Fifth Annual Report of the State Dept, of Health, Okla. p. 13 



Public Health Administration 


423 


laboratory for the purpose of determining whether such 
articles are adulterated, mislabeled or misbranded, 
within the meaning of the Pure Food and Drugs Law.” 19 
If it appears that any specimen is adulterated, misla¬ 
beled or misbranded, the state commissioner of health 
notifies the county attorney of the county in which the 
sample was taken. 20 Violation of the pure food and 
drugs act is a misdemeanor, punishable by fine and im¬ 
prisonment. 21 

One of the strangest things about the health laws of 
Oklahoma is the fact that they do not prescribe the 
personnel of the state board or health; and, strictly speak¬ 
ing, there seems to be no such board. In 1917 the state 
commissioner of health responded to an inquiry, “I am the 
state board of health,” 22 and this statement is still true. 
In fact, the publications prepared under the supervision of 
the commissioner are labeled as coming from the state 
health department; although a board, rather than a de¬ 
partment, is established by law. Yet regulations are issued 
as coming from the state board of health. 

The 1923 legislature (S. L., ch. 168) organized the state 
health department into several bureaus, including a bureau 
of public health educational work, a bureau of diagnostic 
laboratory, a bureau of sanitary engineering, a bureau of 
pure food, drugs and sanitary inspection, a bureau of vital 
statistics, a bureau of control of epidemics, a bureau of 
distribution of biologies, a bureau of venereal diseases, and 
a bureau of maternity and infancy. Some of these bureaus 
.re merely nominal, while others are completely organized. 

t9 Bunn Supp. 1918, 6948 
20 Ibid. 

21 Ibid, Sec. 6957j. 

22 Child Welfare in Oklahoma; pub. by Nat’l Child Labor Com¬ 
mittee, 1917 



424 


Government of Oklahoma 


Most of the bureaus have already been in operation under 
slightly different names. Some quotations from the latest 
available report" 3 of the state department of health will in¬ 
dicate the nature of their work. 

“The work of this Bureau (Diagnostic Laboratories) 
falls into three main divisions. 

“1. Examination of specimens of communicable and 
infectious diseases and other bacteriological tests. 

“2. The analysis of samples of food and drugs col¬ 
lected by county officials and the Inspectors of the 
Health Department. 

“3. The analysis, both bacteriological and chemical, 
of samples of water and sewage collected by the State 
Sanitary Engineer, County Superintendents of Health, 
and others from public water supplies suspected of be-' 
ing polluted. 

“All work done by the laboratory is entirely free, 
there being no charge for the examination and analysis 
of samples of various kinds sent in fr^m all over the 
state. This free service makes bacteriological tests pos¬ 
sible for the poor as well as for the rich. * * * 

“City physicians and officials are earnestly requested 
to submit samples of their water to the laboratory for 
analysis. This service alone has doubtless saved thous¬ 
ands of cases of sickness and prevented many deaths, 
to say nothing of the financial economy it has been to 
the state. 

“The number of animal heads examined for rabies 
yearly would more than justify the entire amount ex¬ 
pended by the state for the maintenance of the labora¬ 
tory * * Upon arrival the head is examined and a wire 
report of the findings sent at once, thus enabling the 
party bitten to secure Pasteur treatment. These treat- 

23 Fifth Annual Report, Okla. State Dept, of Health, pp. 11, 14. 


Public Health Administration 


425 


ments are furnished free to those who are unable to 
pay. 

“To give the reader some idea of the magnitude of 
preventive service performed by the State Laboratory, 
will state that during the last fiscal year there were 
13,780 tests and analyses made, which included tests for 
Malaria, Typhoid, Diphtheria, Rabies, Water, Wasser- 
man blood tests, Gonorrheal smears, etc. * * * 

BUREAU OP EPIDEMICS. 

“The duties of the Bureau of Control of Epidemics 
and Distribution of Biologies lie chiefly in the field of 
prevention. Since the organizaton of this bureau 125,- 
000 people have been vaccinated against typhoid fever, 
about fifty thousand of these being immunized at the 
expense of the state. 1,618,000 units of diphtheria an¬ 
titoxin have been distributed free. On an average there 
are about fifteen anti-rabic treatments distributed each 
month; 2,000 treatments of influenza serum have been 
sent out at the expense of the state, and about 2,500 
smallpox vaccine. It is readily discernible what a part 
this bureau plays in the prevention * * * of disease. 

BUREAU OF PUBLIC HEALTH EDUCATION 

“The chief duty of the Bureau of Public Health Edu¬ 
cation is to disseminate health propaganda. That it is 
impossible for a nation or individual to achieve really 
great things without good health is recognized by all 
progressive people. Statistics show that there are 630,- 
000 preventable deaths in the United States each year; 
that the average value of these lives is $1,700 or a total 
approximately $1,000,000,000.00. By preventable deaths 
is meant those which would be avoided if the knowledge 
now existing among well informed medical men were 


426 


Government of Oklahoma 


actually applied in a reasonable way and to a reasona¬ 
ble extent. Therefore it is readily seen what a wide 
range of possibilities this bureau has for good service to 
suffering humanity.” 

STATE TUBERCULOSIS SANITORIA 
In 1919 the Legislature provided for the establishment 
of three district tuberculosis sanitoria, which are located 
at Clinton, Talihina and Boley, respectively. The first 
two are for white persons and can accommodate one 
hundred patients each. The sanitorium at Boley is for 
negroes, and accommodates £ifty. 

The work of these institutions consists not only in 
treating patients, but also in the dissemination of know¬ 
ledge as to the cause, control and cure of tuberculosis. 

“While these Sanitoria 'shall be open to the treat¬ 
ment of all residents and citizens of the state afflicted 
with tuberculosis', yet the policy pursued will be to 
give preference to curable cases, for the reason that 
there are a great many more persons within the state 
suffering from tuberculosis than can be accommodated 
and cared for in these three institutions." 24 

Patients who are able to pay for their board, care 
and treatment at these sanitoria are expected to do so: 
“all other patients shall be admitted upon request of 
the County Health Physician, Public Health Nurse of 
the Sanitorium or the State Board of Health; and the 
County Commissioners of the county from which such 
patient is admitted, or sent, shall pay to such district 
sanitorium the sum of not less than ten dollars ($10.) 
nor exceeding fifteen dollars ($15.) per week for board 

“Bulletin “Information about Tuberculosis Sanatorium.” issued 
by State Health Dept, no date 



Public Health Administration 


427 


care and treatment of such patient.” 25 In order to pay 
this sum, and to provide for the transportation of in¬ 
digent patients, the excise board of each county is en¬ 
titled to levy not more than one mill for a “Tuberculosis 
Fund,” in addition to the legal maximum levy for cur¬ 
rent expenses. 26 

The sanitoria are placed under the joint supervision 
of the state board of affairs, which supervises their “fiscal 
and business aff airs,” and of the state board of health, which 
supervises the admission, treatment and discharge of in¬ 
mates. 27 

By this law, a bureau of tuberculosis is established in 
the state department of health, in charge of a chief physic¬ 
ian, an expert in prevention and treatment of tuberculosis, 
experienced in sanitorium construction and management. 
He is to be appointed by the state commissioner of health, 
with the approval of the governor. 28 No duties whatever 
are laid upon the bureau or the chief physician, nor is any 
appropriation made for his salary o^ expenses of the bureau, 
so that this provision of the law is a dead letter. The 
state commissioner of health endeavored to secure the pas¬ 
sage by the following (eighth) legislature of a bill creating 
a tuberculosis commission with supervision over the state’s 
tuberculosis sanitoria; but the bill was rejected. 29 

PUBLIC HEALTH WORK IN THE COUNTY 

The state commissioner of health appoints in each 
county a county superintendent of public health, whose 
term of office is two years, unless he is removed sooner 
by the state commissioner. The appointments are made 

“Ibid. Sec*. 10 

37 Ibid. Sec. 6 

“Ibid. Sec. 7. 

“Fifth Annual Report of State Dept, of Health, p. 28 

25 S, L. Okla. 1910, H. B. 380, Sec. 9. 


428 


Government of Oklahoma 


in such a way that two terms of office cover and coin¬ 
cide with the four-year term of the governor. The coun¬ 
ty superintendent of public health must be “a regular 
practicing physician of good standing and of good moral 
character and a resident of the county for which he is 
appointed.” His salary, which is to be paid quarterly 
by the county commissioners, out of the salary fund of 
the county, is the magnificent sum of “five dollars per 
day for the time actually and necessarily served.” The 
maximum salary which he may receive in a year ranges 
from $200 in counties of not more than 10,000 inhabi¬ 
tants, to in counties of morg than 50,000 inhabitants. 
In addition, he may receive compensation for “the ac¬ 
tual and necessary expenses contracted in the dis¬ 
charge of the duties of the Superintendent of Public 
Health when attempting to control and prevent the 
spread of any epidemic.” 30 A remarkable provision of 
the law requires “that appointments of county super¬ 
intendents of health shall be made from all the recog¬ 
nized schools of medicine, as near as may be according 
to the relative per cent of practitioners of the various 
schools in the state.”* 1 

The powers and duties of the county superintendent 
of public health include the abolishing of nuisances, the 
isolation of persons affected with “dangerous and con¬ 
tagious diseases,” and the right “to do other things, 
with the approval of the State Board of Health, as may 
be deemed necessary for the preservation of the public 
health within said county.” 32 In case of an epidemic, the 
county superintendent of health and the board of county 
commissioners “may make such provisions, rules and 

S9 Bunn. Supp. 1918, 6799. 

81 Ibid, 6791. 

82 Ibid, 6791. 



Public Health Administration 


429 


regulations as may be necessary under such conditions, 
to prevent the spread of such dangerous epidemic, and 
shall have full power to compel submission to any rules 
and regulations that they may deem for the best inter¬ 
ests of their community to stamp out or prevent the 
spread of such epidemic.” 33 Further duties of the county 
superintendent of public health include the enforcement 
of the “rules and regulations of the State Board of 
Health in the prevention of the spread of all infectious, 
contagious or epidemic diseases in his county.” He is 
required “to investigate and examine into the cause 
'thereof, and to recommend rules and regulations to rem¬ 
edy same, and to do such other things in carrying out 
the purpose and object of its creation, as the State Board 
of Health may lawfully require of him.” 34 

All practicing physfcians in the county are required 
to report to the county superintendent of public health 
any cases of infectious and contagious diseases discov¬ 
ered by them. Failure to make such a report is a mis¬ 
demeanor punishable by a fine of from ten to twenty- 
five dollars. The physician is required to establish a 
temporary quarantine, “and the penalty herein provided 
for the violation of a township or town quarantine shall 
be enforced against the violation of a quarantine order 
made by such a physician.” 35 

The law quoted makes no special provision for the 
counties in which township government has been abol- 

38 Ibid. 6799 

34 Bunn Supp. 1918, 6802 

35 Ibid. 6795. “Upon receiving fne said report, it shall be the 
duty of th.e county superintendent, if such contagious and infectious 
disease exists in a township or town, to issue an order of 
quarantine to the board of health, las herein created, in such town¬ 
ship or town, in such form as may be stipulated by the rules and 



480 


Government of Oklahoma 


ished; but since another law 30 provides that the duties 
of the township board of directors shall in such cases 
be taken over and performed by the board of couhty 
commissioners, undoubtedly this board would act to es¬ 
tablish necessary quarantines in these townships. In 
townships which retain local government under a board 
of directors, this board acts as a township board of 
health. “The said board of directors, when acting as 
township board of health, shall be under the supervi¬ 
sion of the county superintendent of public health, and 
shall be governed by such rules and regulations as may 
be prescribed by the State Board of Health in relation 
to the public health; and they shall have the power, 
and it is hereby made their duty, to enforce such rules 
and regulations pertaining to quarantine of contagious 
and infectious diseases under the direction of the coun¬ 
ty superintendent of public health . 5,37 

The town .board of trustees of every incorporated 


regulations of the State Board of Health, requiring such township 
or town hoard of health to serve a true copy of said order of quar¬ 
antine upon such person or persons having such contagious or infect¬ 
ious disease in the same manner as criminal processes are served; 
and thereupon such person having such contagious or infectious disease 
shall be, by said township or town board of health, isolated and con¬ 
fined, and all other persons exposed to said infectious or contagious 
disease shall at the discretion of said township or town board of health 
be also isolated and confined; and any person having such disease or 
exposed to such infectious or contagious disease who shall leave the 
place where he has been isolated by any township or town board of 
health, or by any officer or other person acting under any order of the 
said township or town board of health, without the consent of the said 
board of health, shall be deemed guilty of misdemeanor and shall be 
fined not less than twenty-five dollars, and not to exceed one hundred 
dollars. Any person isolated or confined by order of a township board 
of health shall not be released or relieved of such isolation or quar¬ 
antine without order from the county superintendent of public health 
made to the township or town board of health.” 

38 Bunn’s Supp., 1018, Sec. 8206, p. t. 

37 R. L. 1010. Sec. 6702. 



Public Health Administration 


431 


toMn in Oklahoma constitute a board of health, which 
“shall perform all the duties herein required of the 
tovnship board of directors, and shall be under the 
sane supervision of the State Board of Health and the 
county superintendent of public health.” 3 * 

THE CITY AND PUBLIC HEALTH. 

In the Cities of Oklahoma the mayor and common 
council (except in charter cities, which may establish 
special public health boards) constitute a board of 
health, with the power and duty of appointing a repu¬ 
table physician as city superintendent of public health, 
enforcing rules and regulations in regard to public 
health, and of establishing quarantine “under the su¬ 
pervision of the city superintendent of public health, 
as prescribed by the rules and regulations of the State 
Board of Health relating to all contagious and infectious 
diseases/’ 39 

Every practicing physician in a city must report to 
the city superintendent of public health all cases of 
contagious and infectious disease discovered by him or 
coming to his knowledge. Failure to do so constitutes: 
a misdemeanor. 40 The city superintendent of public 
health issues an order of quarantine to the mayor, and 
the mayor and common council, acting as a board of 
health, serve a true copy of this order upon the diseased 
person in the same manner as criminal processes are 
served. At the discretion of the board of health, all 
persons who have been exposed to such disease may be 
quarantined. “Breaking quarantine” is a misdemeanor, 
punishable by a fine of from twenty-five dollars to one 
hundred dollars. The physician who discovers any case 

“Ibid. Sec. 6793 
39 Ibid. Sec. 6794 
40 Ibid. Sec. 6796 



432 


Government of Oklahoma 


of contagious disease has the power and duty of es¬ 
tablishing a temporary quarantine, which is sanctioned 
by the same penalties provided for the quarantine issjied 
by the board of health. 


WHO MAY SERVE ORDERS OF HEALTH OFFICERS OR BOARDS. 

“Orders made and issued by the county superintend¬ 
ent of public health, or the township or town board of 
health, may be served by the sheriff of the county, or any 
of his deputies, or by the constable of such township or 
any of their deputies, or by any^person a resident of said 
county, authorized so to do by the president, or, in his 
absence, any member of the township board of directors. 
Orders made and issued by the county superintendent 
of public health or the town board of health may be serv¬ 
ed by the sheriff of the county or by any of his deputies, 
or by the town marshal, or any peace officer of the town 
or any person authorized so to do by the president of 
the board of directors, or, in his absence, any member of 
the said board of directors of said town .” 41 

Any person who has been aggrieved by any act, rule, 
or regulation of any board of health may bring suit in 
the district court of the county where some member of 
the said board resides. 

Dentistry, pharmacy, embalming, nursing, osteopathy, 
chiropractic, and the practice of medicine are regulated 
by special laws; and each of these professions or occu¬ 
pations has a board of examiners to pass upon the fit¬ 
ness of candidates who desire to practice it. It is im¬ 
possible within the limits of this chapter to discuss the 
laws governing the practice of these professions. 

The law lays upon the county commissioners of each 


‘R. L. Okla. 1910, Sec. 6798 



Public Health Administration 433 

;county, and the mayors of cities and towns, the duty 
of seeing that jails, and “hold-overs” are thoroughly dis¬ 
infected and cleaned at certain intervals during the 
year. The state commissioner of charities and correc¬ 
tions is given the right to direct that these buildings 
shall be put into sanitary condition at other times if this 
seems necessary. Prisoners suffering from contagious di¬ 
sease are to be isolated. Similar provisions are laid down 
for the sanitation of poorhouses. Officials who fail in 
performing the duties laid upon them by this article of 
the law are guilty of a misdemeanor punishable by a 
fine of from ten dollars to five hundred dollars; in ad¬ 
dition to which they may be removed from office . 41 

SUMMARY AND CONCLUSIONS. 

In this brief survey of the public health work of Ok¬ 
lahoma, we have seen that the laws are incomplete or 
confused in several instances. The first criticism that 
must be made, in fact, is that the laws regarding public 
health in this state are very inadequate. 

This inadequacy has been demonstrated in two glar¬ 
ing instances; namely, the establishment of a state 
board of health with no personnel; and the establish¬ 
ment of a bureau of tuberculosis, with no funds to 
maintain it. Other faults of the law have been summar¬ 
ized as follows : 43 

“There is no law or regulation requiring vaccination 
against smallpox. Neither is there any law or regulation 
to compel the treatment of the eyes of infants at child¬ 
birth to prevent blindness. There is no provision for the 
medical examination of public school children nor for 


"R. L. 1910, Ch. 67, Art. XI. 

^Ohild Welfare in Oklahoma, p. 250. 



434 Government of Oklahoma 

a certificate of good health for teaching in the public 
schools.” 

The failure of the laws to make vaccination compul¬ 
sory to every child who attends the public schools is un¬ 
doubtedly a potent reason why Oklahoma has many 
cases of smallpox every year. Since the preceding para¬ 
graph was written, the legislature has been prevailed 
upon to pass a law 44 requiring the eyes of newborn in¬ 
fants to be treated with nitrate of silver solution; but 
this law is robbed of its force by the following clauses: 

“Should a physician or the parents of said child pre¬ 
fer to use a form of prophylaxis other than the one pre¬ 
scribed by the above (one per cent solution of nitrate 
of silver) he may do so provided he states in writing 
his reasons for doing so to the local health officer of the 
county, city or town, magisterial district or whatever 
political division there may be within which the infant 
or mother of any infant may reside, within three days 
from the date of administering same. Should a physi¬ 
cian or the parents of said child deem it best for the 
interests of his patient, not to use any prophylactic, he 
shall not be required to do so provided he states fully 
in writing ... his reasons for not doing so. 

Sec. 8. Nothing in this act shall be construed to com¬ 
pel persons or parents to conform to same, who have 
religious beliefs contrary to the use of medicine.” 45 

Despite the numerous shortcomings of the public 
health laws, they would be capable of accomplishing 
far more than they now do if they were properly en¬ 
forced; but it is known and acknowledged openly that 
such is not the case. 

One important reason why the health laws are not 


“S. L. 1921. Ch. 4. 
45 Ibid. 



Public Health Administration 


435 


better enforced is certainly the type of organization pro¬ 
vided for their enforcement. There should unquestion¬ 
ably be a state board of health composed of well-paid 
experts; and a much larger staff to carry out the policies 
of the board than is provided at present. Requirements 
laid upon the members of this staff should be high, and 
salaries should be high in proportion. 

In regard to the work of the ex-officio boards of 
health of local units, the following criticism has been 
made: 

“Their primary interest ... is not health and except 
in cases of flagrant abuses they do not exercise their 

power.(Because of the per diem basis and the 

low total salary of the county superintendents of health) 
in some cases the position is political, the superintendent 
receiving the maximum salary and on the whole doing 
a minimum of work. As a rule, inspection is made only 
on complaint, cases of contagious diseases are not pro¬ 
perly isolated, complete records of vital statistics are 
not kept, and practically no constructive or educational 
activity is carried on. The health officers frankly state 
that their salary is not sufficient to permit them to de¬ 
velop the work, and that their private practice comes 
first. Not only do they give little of their time, but 
they are loath to take any measures, even when re¬ 
quired by law, that might antagonize their clients or 

fellow physicians.The work is not considered 

of much importance in the community, and for the most 
part, both the county and city superintendents are me¬ 
diocre physicians, with little knowledge of medical sci¬ 
ence and none of modern public health methods. 

The health officers in (certain) cities are doing work 



436 


Government op Oklahoma 


as effective as possible with the staff and money at 
their disposal. 

“Such a health organization would be ineffective in 
any community. It is doubly so in a rural state like 
Oklahoma where even the most elementary of health 
measures are seldom observed. 

“Even the rural schools, which might be expected to 
set the health standard for the community, contribute 
to the unsanitary conditions.” 46 

Oklahoma is disgraced annually by widespread epi¬ 
demics of contagious diseases, most of which would 
never occur if the public health laws were enforced. 
We have seen that there are elaborate legal provisions 
as to quarantining contagious diseases, but as a matter 
of fact effective quarantine, except in a very few com¬ 
munities, is so rare as to be unheard of. Sometimes 
parents do not call a physician to treat mumps, measles, 
chicken pox, etc. Sometimes when a physician is called 
he is disposed to make light of the disease, to discount 
the danger of contagion, and to overlook the quaran¬ 
tine regulations. Even if he feels that he ought to re¬ 
port the disease and see that quarantine is established, 
he is frequently deterred from doing so by hostility on 
the part of the patient’s family. Given the choice be¬ 
tween retaining a profitable connection, and breaking 
it in order to become a martyr for conscience’s sake, it 
is the exceptional physician who insists upon quarantin ¬ 
ing for the less virulent diseases, particularly since he 
knows that few of his professional brethren will follow 
his example. Even the more serious diseases, such as 
smallpox and scarlet fever, are seldom rigidly quaran¬ 
tined. 

^Ohild Welfare in Okla. pp. 11-13. 





Public Health Administration 


437 


Very little attempt is made to exclude sick children 
from the public schools, though the regulations of the 
state health department require their exclusion. Sore 
throats, fever and other general symptoms are absolute¬ 
ly unnoticed, as a rule, and children are sometimes al¬ 
lowed to remain in school even though a rash on their 
skin indicates the probable presence of contagious di¬ 
sease. The schools are seldom closed because of epi¬ 
demics, as teachers, parents, school boards and physicians 
too frequently agree that the children must have the 
contagious diseases at some time, and the earlier the 
better. 

It is evident that conditions will not be improved 
much until the attitude of the public is changed by a 
widespread campaign of education along the various 
lines of public health work. When the citizens of the 
state realize that illness costs time, money, happiness, 
and life, that blindness and deafness and many other 
dreadful handicaps sometimes follow the “harmless 
children's diseases," and that measureless suffering 
could easily be prevented, and the health and welfare 
- of the community could be greatly augmented, by a 
proper regard for health; then, and only then, they will 
demand adequate public health laws, adequately en¬ 
forced. 


CHAPTER XV 


AGRICULTURE 

Oklahoma is a predominantly agricultural state. In 
the 1920 federal census reports, its rural population is 
given as 65.1 per cent of its total population. Its topo¬ 
graphical and climatic features are such that a wide 
diversity of crops can be raised. For these reasons a 
good deal of attention has been devoted to laws and 
state agencies designed to benefit the farmer, and to 
encourage progressive agricultural methods. The present 
chapter will be devoted to a brief survey of the stated 
activities in this direction. 

The board of agriculture, which is created by the 
constitution, 1 acts as the chief administrative and super¬ 
visory body for agricultural purposes. It is composed 
of five members, all of whom must be farmers with “at 
least five years’ practical experience after reaching the 
age of twenty-one years.” The president of the board 
is elected for four years at the time when the other 
tetate officers are elected. He is the chief executive of¬ 
ficer of the board, and in the absence of the board, 
performs all duties imposed upon it by law, subject to 
its approval. 2 The other members of the board are ap¬ 
pointed by the governor, by and with the consent of 
the senate. Members were appointed originally for one. 
two, three and five year terms. The term of all members 
appointed later is five years. 3 


Art. VI, Sec. 31, as amended in 1014 

2 JEt. L. 1910, Sec. 13 

s S. Tj. 1915, Ch. 109 


(438) 



Agriculture 


439 


The constitution 4 provides that the board of agricul¬ 
ture “shall be maintained as a part of the State gov¬ 
ernment and shall have jurisdiction over all matters 
affecting animal industry and animal quarantine regu¬ 
lations, and shall be the Board of Regents of all State 
Agricultural and Mechanical Colleges, and shall dis¬ 
charge suclhi other duties and receive such compensa¬ 
tion as now is, or may hereafter be, provided by law.” 

The general powers conferred on the board of agri¬ 
culture by statute are as follows: 

“The board of agriculture shall be the board of re¬ 
gents of all agricultural and mechanical colleges; it 
shall select the professors, presidents, and other em¬ 
ployees of each of said schools, fix their salaries and 
prescribe their respective duties. It shall prescribe the 
course of study in each of said schools, and shall or¬ 
dain and establish such rules and regulations for the 
management thereof, not inconsistent with the laws of 
the State, as they may deem necessary and proper. It 
shall have jurisdiction over all matters affecting animal 
industry and animal quarantine regulations, and of all 
matters affecting agriculture, horticulture and arbori¬ 
culture. Its duties shall include the collection and pub¬ 
lication and distribution of statistical information con¬ 
cerning all matters under its control and supervision. 
It shall have supervision of the county farmers' insti¬ 
tute system, and shall prescribe such reasonable rules 
and regulations for the management of county institutes, 
not inconsistent with the laws of the State, as they may 
deem proper. Said board shall, furthermore, have power 
to adopt and devise such rules and regulations as may be 
necessary to secure the efficient administration and 
proper enforcement of all laws which have for their ob- 


4 Art. VI, Sec. 31, as amended in 1914. 



440 


Government of Oklahoma 


ject the preservation, protection, encouragement or im¬ 
provement of any branch of agriculture. It shall have 
power to appoint sub-committees from its membership 
to perform any duty imposed by law upon said board. 
It shall have the power to employ all clerical help ne¬ 
cessary to conduct the business of the board, and fix 
their compensation within the limitations provided by 
law. It may require such bond in any case as it deems 
necessary to protect ‘the State.” 4 

Specific powers have been granted to this board from 
time to time. These will now be discussed, together 
with the duties of other agencies established for related 
purposes. 

PREVENTION OF DISEASES AMONG ANIMALS 
In order to prevent the spread of disease among ani¬ 
mals, the state board of agriculture has power and au¬ 
thority to establish at any time quarantine lines in the 
state and to make rules and regulations to maintain and 
enforce them. 6 Counties are required to cooperate with 
the state in this work and are allowed to levy a tax to 
cooperate with the state board of agriculture in ‘The 
eradication of ticks * * * the carriers of Texas or splen¬ 
etic fever.” 7 In order to treat animals infected with 
ticks, townships and counties under certain conditions 
may provide dipping vats at a cost not exceeding $200.' 
For the purpose of carrying out the quarantine regula¬ 
tions of the state, a state superintendent of livestock in¬ 
spection, who coooperates with the federal bureau of an- 
mal industry, and a corps of livestock inspectors, are ap- 

Tt. L. 1910, Sec. 12 
e S. L. 1913, On. 228 
7 S. L. 1913, Ch. 80 
“S. L. 1910, Ch. 115 



Agriculture 


441 


pointed by the board of agriculture. 9 Railway companies 
are required by law to disinfect the cars and pens used 
by them in transporting live stock through the state. 10 It 
is also made unlawful for any cattle to be introduced 
into Oklahoma from any territory quarantined by the Sec¬ 
retary of the United States Department of Agriculture 
for certain specified diseases, without being dipped. 

The board of agriculture enforces quarantine regula¬ 
tions as may be necessary to prevent the introduction of 
tubercular dairy cattle or breeding cattle. It is made 
their duty to investigate every suspected case, and to 
see that any cattle found to be tubercular are destroyed 
or segregated. When such animals are slaughtered 
under the provisions of law the board is authorized to 
pay the owner not to exceed one-half of the difference 
between the appraised value and the value of the salv¬ 
age of the carcasses, with the proviso that the state shall 
not pay over $150 on any registered animal, or over 
$50 on any grade animal. In case the stock contracted 
the disease outside the state, or the owner violated the quar¬ 
antine regulations of either the state or the national gov¬ 
ernment, the state is not liable. 11 

A state veterinary surgeon is appointed by the board 
of agriculture. 12 A law of 1915 13 provides that whenever 
live stock within the state are found by the state veteri¬ 
nary surgeon to be affected with rinderpest, foot and 
mouth disease, glanders, maladie du coit, or contagious 
pleuro-pneumonia, tuberculosis or anthrax, he summons 
three disinterested house holders, and they appraise the 

9 S. L. 1919, Ch. 44 
10 R. L. 1910, Sec. 41 
1J| R. L. 1921, CL. 38 

12 S. L. 1915, p. 119, amending R. L. 1910, Sec. 17 
,a S. L. 1915, Ch. 233 



442 


Government of Oklahoma 


stock. The veterinarian then kills the animals and so 
disposes of their carcasses as will best protect the health 
of domestic animals in that locality. The report of the 
veterinarian is sent to the superintendent of live stock 
inspection, who presents the account to the state board of 
agriculture, which audits the account and allows it if it 
is found to be correct. The sum paid by the state, how¬ 
ever, in such cases, must not exceed one-half the value of 
such animal so killed and destroyed. 

Another law passed in the same year seems to be 
amendatory to the above law in respect to killing animals 
for foot and mouth disease. This law provides that the 
appraisement shall be the full value of the stock killed, 
and the state shall be liable for fifty per cent of the ap¬ 
praised value, provided the federal government will pay 
fifty per cent. 14 

The state livestock inspectors or their local deputies 
are charged with the duty of inspecting all animals 
which are about to be slaughtered for food. If such an¬ 
imals show signs of certain diseases, the inspectors for¬ 
bid their owners to kill them for this purpose. The in¬ 
spectors must keep records describing each animal 
slaughtered; and must give to the person slaughtering 
such animal a certificate showing that it was “found 
to be fit for human food.” 15 

PREVENTION OF DISEASES IN PLANTS AND CROPS 

The state law makes it unlawful to sell, offer for sale 
or give away any nursery stock, fruit trees, bushes, vines 
or fruits, grains, seeds or vegetables, if they are infected 
with injurious insects or with dangerous and contagious 
diseases. 16 To prevent the introduction and dissemina- 

14 S. L. 1915, Ch. 26 

1S R. L. 1910, Sec. 85. 

16 R. L. 1910, Sec. 85 



Agriculture 


443 


lion of injurious insect pests or diseases, the board of ag¬ 
riculture is authorized to enforce such quarantine rules 
and regulations as are necessary. The president of the 
state board of agriculture issues proclamations setting 
forth these rules and regulations. 17 All nurseries in the 
state are subject to inspection once each year by the 
state entomologist, acting under the direction of the 
board of agriculture. In case the nursery stock is in¬ 
fested with pests or infected with contagious plant dis¬ 
ease, sale is forbidden until the stock has been sprayed, 
fumigated or dipped, as the case may be. In some in¬ 
stances the stock is destroyed. The board of agriculture 
requires any one shipping or disposing of nursery stock 
to attach to each shipment or delivery a certificate of 
inspection. 18 Permits to sell nursery stock are issued by 
the board of agriculture. As a condition precedent to 
the issue of the permit, the board requires a report of 
the inspection of the nursery stock. 19 All nursery stock 
which is shipped into Oklahoma from other states must 
not only be accompanied by a duplicate of the permit, 
but shall also be subject to reinspection, and if upon 
reinspection the stock is found to be diseased or infested 
with pests, the board of agriculture may prohibit its sale 
until properly treated. 20 Agents are required to carry a 
letter or certificate from their principals, setting forth 
the fact of authorization to do business and other rele¬ 
vant matters. 21 A law of 1915 adds various similar pro¬ 
visions to this law for the protection of nursery stock. 22 

1T Ibid. Sec. 86-87. 

“Ibid. Sec. 88 
“Ibid. Sec. 92 
2< Tbid. Sec. 93 
21 Ibid. Sec. 94 
22 S. L. 1915, Ch. 279 



444 


Government op Oklahoma 


REGULATING THE SALE OF AGRICULTURAL SEEDS 

A law of 1919 provides for the proper labeling of 
seeds, prescribes standards of purity of seeds, defines 
noxious weeds, and provides for the enforcement of the 
law in respect to seeds through inspecting, sampling 
and testing. Administration of this act is in the hands 
of the state board of agriculture. Provision is made 
for the punishment of violators of the act. 

THE COLLECTION AND DISTRIBUTION OF AGRICULTURAL 
STATISTICS 

It is the duty of the state board of agriculture to 
gather, compile and disseminate statistical information 
relating to “land areas, crop acreages, and such other 
subjects as may be under its supervision.” 23 County as¬ 
sessors are required to collect this information in such 
form as is prescribed by the state board of agriculture. 

INSPECTION OF FERTILIZERS 

Oklahoma guards the purity of fertilizers by provid¬ 
ing that the certificate of the manufacturer shall be at¬ 
tached to every package of commercial fertilizer sold 
in the state. This certificate must contain a statement 
of net weight, the name of the brand or trade-mark 
under which the article is sold, the name of the manu¬ 
facturer and the place of manufacture, and a chemical 
analysis showing certain component parts of the fertil¬ 
izer. 24 Before any commercial fertilizer is sold or of¬ 
fered for sale, the manufacturer, importer, or duly au¬ 
thorized agent who intends to sell it within the limits 
bf the state, must file with the secretary of the board of 

“S. L. 1919, Oh. 82 
w rt. L. 1910, Sec. 76 



Agriculture 


445 


agriculture a certified copy of this certificate. 25 The 
manufacturer or importer of any commercial fertilizer 
or the agent of such manufacturer or importer shall 
pay annually a license fee of twenty dollars on each 
brand for the privilege of selling or offering it for sale 
within the limits of the state. 26 The chemical depart¬ 
ment of the Oklahoma Agricultural Experiment Station 
makes an analysis at least once a year of all fertilizers 
offered for sale. 27 

INSPECTION OF STOCK FOODS 

All “concentrated commercial feeding stuffs” are in¬ 
spected and required to be tagged before being sold. 
Every lot or parcel of such stock food sold or offered 
for sale must contain a tag giving nine or ten points of 
information regarding its weight, contents, manufactur¬ 
er, etc. Before any such feeding stuff can be offered 
for sale the manufacturer, importer or seller must file 
with the board of agriculture a certified copy of this 
statement, and deposit a sample of the stock food, ac¬ 
companied by an affidavit that it is a fair average sam¬ 
ple. The importer, manufacturer or seller must pay an 
inspection tax of ten cents per ton. Annual inspection 
6f commercial stock foods must be made by the board 
of agriculture. 28 

REGISTRATION OF BREEDING ANIMALS 
In order to protect the purity of live stock in the 
state, an Oklahoma board of live stock registry is es¬ 
tablished. This board, which consists of instructors in 

3 Tbid. Sec. 77 
"'Ibid. Sec. 78 
"Ibid. Sec. 79 
*S. L. 1911, Oh. 113 



446 


Government of Oklahoma 


the state agricultural college, issues licenses of four 
different kinds, depending upon the purity of breeding, 
to those who wish to “stand, travel, advertise or offer 
for public service in any manner, any stallion or jack 
in the State of Oklaoma.” The board makes investiga¬ 
tions to determine whether such animals are properly 
registered. They have the power to revoke a license 
when they find that false representations have been 
made. 29 

REGULATING THE PRACTICE OF VETERINARY MEDICINE 

A state board of veterinary medical examiners, con¬ 
sisting of five members, appointed by the governor, ex¬ 
amines those desiring to practice veterinary medicine. 
Each member of this board must be a graduate of a vet¬ 
erinary college which stands approved by the United 
States Bureau of Annual Industry, or the veterinary de¬ 
partment of a state university. Candidates who satis¬ 
factorily pass the examination, which is held once each 
year in June, are registered by the board and given a 
certificate entitling them to practice. In case any per¬ 
son holding such certificate is convicted in a court of 
competent jurisdiction of “dishonorable or unprofes¬ 
sional conduct as defined by law,” his license may be 
revoked by the board. The practice of veterinary medi¬ 
cine without a license is prohibited and is made a mis¬ 
demeanor. 30 

Special laws require the quarantine of swine showing 
signs of hog cholera; regulate the sale of serum and 
virus for this disease ; 31 _ and make other like provisions 
for the safety of domestic animals and the general pub- 

^R. L. Okla. 1915, Ch. 53 

so S. L. 1913, Oh. 28 

"S. L. 191G. Oh. 31, S. L. 1917, Oh. 172. 



Agriculture 


447 


lie. A state inspector of apiaries, in the department of 
entomology at the Agricultural and Mechanical College, 
is given the power to examine all apiaries, to give in¬ 
structions for the treament of diseased bees, and to 
destroy such bees under certain conditions.” 

A department of dairying under the state board of 
agriculture, with a state dairy commissioner appointed 
by this board as its head, inspects dairies, creameries, 
and all places or vehicles where milk is handled, sold 
or transported. The dairy commissioner prescribes 
“such reasonable rules and regulations * * * as he deems 
necessary to fully carry out the provisions of law * * * 
relative to the dairy products.” 33 “He may examine un¬ 
der oath, or otherwise, any person whom he may be¬ 
lieve has knowledge concerning the operations of any 
creamery, public dairy, butter or cheese factory; may 
issues subpoenas requiring the appearance of witnesses 
and the production of books and papers, and may ad¬ 
minister oath with like effect as is done in courts of law 
tin this State, and any witness so summoned and exam¬ 
ined shall receive the same fees therefor as is now pro¬ 
vided for like services in justice courts. And it shall 
be the duty of any district, superior or county court or 
judge thereof, upon the application of said Commission¬ 
er, to issue an attachment for such witnesses, and com¬ 
pel him or them to attend before the Commissioner and 
give testimony upon such matters as he, or they, shall 
be lawfully required by such Commissioner, and said 
court or judge shall have power to punish for contempt 
as in other cases of refusal to obey the orders and proc¬ 
esses of the court. 


32 S. L. 1915, Ch. 76. 
33 S. L. 1919, Ch. 247. 



448 


Government of Oklahoma 


“Section 5. Any person or persons, firm or corpora¬ 
tion who shall hinder or obstruct or in any way inter¬ 
fere with the State Dairy Commissioner or his deputies 
while discharging the duties of inspection or who shall 
Refuse or fail to make the reports provided for by Sec¬ 
tion 4, or who shall refuse or neglect to conform to the 
rules and regulations of the State Dairy Commissioner 
* * * shall be guilty of a misdemeanor and shall be 
fined a sum of not less than twenty-five dollars ($25.00) 
nor more than three hundred dollars. ($300.00) 

MISCELLANEOUS PROVISIONS 

The law defines a number of weights and measures, 
requires that all packages or containers filled with cer¬ 
tain products shall be marked with the name and 
weight of contents; and charges the board of agricul¬ 
ture with the enforcement of these provisions. 35 

Many minor functions are given to this board, and 
to the other boards and commissions described in this 
chapter; but these functions cannot be detailed here 
for lack of space. 

HELPING THE FARMER MARKET HIS PRODUCTS 

By a law of 1919 36 there was created a state farm 
and industrial council, consisting of delegates elected 
from the farm and industrial council of each county in 
the state, and from duly organized state-wide agricul¬ 
tural, educational and industrial associations. The pur¬ 
poses of this council are: “Organizing county and com¬ 
munity councils, federating organizations established for 
mutual help, promoting agricultural and industrial en- 

34 S. L. 1919, Ch. 247. 

35 R. L. 1910, Ch. 81. 

36 S. L. 1919, Ch. 91 



Agriculture 


449 


terprises, good roads, community building, co-operation 
in marketing, and the carrying on of projects of state 
and national interests.” This council meets at the Agri¬ 
cultural and Mechanical College at Stillwater. The offi¬ 
cers of the state organization consist of a president, vice 
president, secretary treasurer and a board of directors 
composed of one representative from each allied state¬ 
wide interest. In addition there is a an advisory board 
composed of the governor, the president of the board of 
agriculture, and the director of the agricultural extension 
work of the state. The advisory board designate the or¬ 
ganizations which shall have representation in the state 
council. They also provide for the organization of the 
county and community councils, and have supervisory 
powers over the state organization. 

A state market commission was established in 1917 
by the legislature. 37 The membership of this commission 
was changed by the laws of 1919 38 so that it now in¬ 
cludes the governor, the president of the state board of 
agriculture, and the director of the extension division 
of the Agricultural and Mechanical College. This com¬ 
mission appoints a secretary who has had experience in 
the grading and marketing of fruit and vegetable pro¬ 
ducts, and such other employees as it deems necessary. 
The powers and duties, of this commission are: 

“First—to organize through the Extension Division of 
the Oklahoma Agricultural & Mechanical College, co¬ 
operating with the United States Department of Agric¬ 
ulture, community and county market associations. 

“Second—To standardize farm products, including 
poultry and dairy products, under adequate rules and 
(sic) sale of commodities exchanged within the State 

w s.- L. 1917, On. 26 

38 S. L. 1919, Ch. 280 



450 


Government of Oklahoma 


of Oklahoma, or produced in the State of Oklahoma 
and sold outside the State of Oklahoma. 

“Third—To provide for agents of the Oklahoma State 
Market Commission in large cities and populous centers 
that are markets for Oklahoma products, who will di¬ 
rect the selling of all shipments from various communi¬ 
ties and county associations, according to rules of the 
Oklahoma State Market Commission, such officers to 
be appointed, where in the judgment of the Oklahoma 
State Market Commission the interests of the shippers 
'will be benefited thereby. 39 

A charge, fixed by the commission, is made for all 
products marketed by it. 

Any community in any county in this state may organ¬ 
ize a local market association under the rules and reg¬ 
ulations formulated by the state commission, by making 
application to the county agent of the agricultural ex¬ 
tension division. The state formulates rules for the 
government of county and community market associa¬ 
tions and for membership in such associations. The 
laws provide that no person can ship products through 
the commission or through local market associations 
who has not complied with the laws relative to spray¬ 
ing, grading, packing, and marketing. The state com¬ 
mission prepares rules for cleaning, grading, sacking, 
packing and otherwise preparing farm products for stor¬ 
age or market. 40 

By another law of 1917, 4 ° a cooperative agricultural 
or horticultural associations were provided for. These 
associations, instituted for the purpose of mutual help, 
having no capital stock and not being conducted for 

“S. L. 1917, Ch. 26 

4 Tbid. 

* a S. L. 1917, Ch. 22. 



Agriculture 


451 


profit, may be formed by not less than five persons en¬ 
gaged in agriculture or horticulture. Such an associa¬ 
tion may, as an agent for its members or any of them, 
perform services connected with the “production, pres¬ 
ervation, drying, canning, storing, handling, utilization, 
marketing, or sale of agricultural products produced by 
them,” and may also perform services for them in con¬ 
nection with the purchase or hire of supplies, “including 
live stock, machinery and equipment, and the hiring 
of labor.” The persons uniting to form an association 
accept the articles of association prescribed by law. 
These articles of association are transmitted to the sec¬ 
retary of state, who issues a certificate which together 
with a copy of the articles of association, is sent to the 
county clerk, who thereupon issues a certificate to the 
association. 

Such an association has, among other powers, the 
power to make contracts, to purchase, lease, or receive 
and to hold personal and real property, to borrow mon¬ 
ey necessary for the conduct of its operations, to issue 
notes and bonds therefor, to give security, to sue and 
be sued. It elects a board of directors, with power to 
appoint a president, vice president, secretary, treas¬ 
urer, and such other officers as may be necessary. It may 
cooperate, through membership or otherwise, with any 
association not conducted for profit, whether formed 
under this particular act or otherwise, provided that 
such cooperation does not “relate to or involve fixing 
v^ages, limiting production, destroying products, or fix¬ 
ing the selling price, or delegate the control of the pro¬ 
ducts of the members of either association.” Each mem¬ 
ber is responsible, as his original liability, for his per 
capita share of all contracts, debts and engagements of 
the association existing at the time he becomes a mem- 


452 Government of Oklahoma 

her and created during his membership; and in case 
any other member's share of such obligation is not 
^collectible, each remaining member becomes responsible, 

FARM LOANS 

A very interesting phase of Oklahoma's official en¬ 
couragement of agriculture is the help given by the 
state to those who desire to purchase farms. This help 
takes the form of loans payable over a long period of 
time. As another chapter describes fully the funds avail¬ 
able for farm loans, they will not be discussed here. 

AGRICULTURAL EDUCATION 

Besides the excellent Agricultural and Mechanical Col¬ 
lege and the other agricultural schools and experiment 
stations established by the state under the control of 
the board of agriculture, many other forces in Okla¬ 
homa are engaged in direct or indirect educational 
work along the same lines. The state co-operates with 
the United States Department of Agriculture in con¬ 
ducting farmers' demonstration work in home economics 
by authorizing the county commissioners in each county 
to contribute $1,200 per year for this purpose, 41 and also 
to appropriate the amount that they deem necessary for 
farm demonstration work. 42 

A state commission of agricultural and industrial ed¬ 
ucation supervises the teaching of the elementary prin¬ 
ciples of agriculture in all public schools. 48 

In conclusion, it may be said that the state's object Is 
clearly to help the farmer to own his farm, to co¬ 
operate with him in meeting his problems, to train him 

41 S. L. 1917, Ch. 116 
i3 R. L. 1910, Secs. 7666-7678. 

^R. L. 1910, Secs. 7666-7678 



Agriculture 


453 


to make the most of his opportunities, to facilitate the 
finding of a market for his products and to give every 
citizen of the state a sufficient knowledge of the prob¬ 
lems and methods of agriculture to insure general und¬ 
erstanding and appreciation of this basic industry. 


CHAPTER XVI. 


HIGHWAY ADMINISTRATION 

State activities in regard to highways are confined 
in Oklahoma to the supervision of the work carried on 
by local government units, and to the furnishing of a 
limited amount of financial aid to such units. The Ac¬ 
tual task of road construction and maintenance is dele¬ 
gated by the state to the counties and townships, and 
is described in the chapter dealing with local govern¬ 
ment. 

Specific mention of highways as an object of state 
concern is made in Article XVI of the constitution, sec¬ 
tion 1 of which provides that “The Legislature is di¬ 
rected to establish a Department of Highways, and 
shall have power to create improvement districts and 
provide for building and maintaining public roads, and 
may provide for the utilization of convict and punitive 
labor thereon.” Pursuant to this constitutional direc¬ 
tion the department of highways was established by an 
act of the Fifth Legislature, in 1915. 1 The chief offi¬ 
cer of this department is the commissioner of high¬ 
ways, who is appointed by the governor, with the ad¬ 
vice and consent of the senate, to serve at the pleasure 
of the governor. The law further specifies that he 
must be a practical road builder and of recognized exe¬ 
cutive ability, whatever these phrases may mean. 2 The 
commissioner of highways appoints the state engi¬ 
neer, 3 and other employees of the department. The 

"Bunn Supp. (1915) Ch. 73, Art. I-A; S. L. 1915, Ch. 173 

2 Bunn Supp. See. 7634b; S. L. 1915, Oh. 173, Art. 1, Sec. 2. 

3 Bunn Supp. Sec. 7634d; S. L. 1915, Ch. 173, Art. 1, Sec. 4 


(454) 



Highway Administration 


455 


commissioner receives a salary of $3,000 per annum; 
the salary of the state engineer is the same. 4 

The functions and duties of the state highway de¬ 
partment may be classified as follows: 

(1) Furnishing information and advice to local road 
authorities in regard to the construction and mainten¬ 
ance of the local roads under their control. 

(2) Furnishing advice, information and engineering 
service to the state departments, etc. 

(3) Supervision of the local road authorities in their 
administration of the state road system. 

(4) Collection and distribution of the automobile li¬ 
cense tax. 

(5) Supervision of federal aid highway work with¬ 
in the state. 

By the law, the commissioner is directed to prepare 
standard plans and specifications for the construction or 
roads and bridges, and to furnisih them upon request to 
any road official in the state. Upon the request of the 
local officials, the commissioner is to inspect and re¬ 
port upon road projects. It is the duty of the commis¬ 
sioner to compile statistics and information relative to 
highway construction and maintenance, and to establish 
standards for such work in the different counties; and 
he may “at all reasonable times ,, be consulted by county 
or township officers having authority over highways 
^nd bridges, relative tcf any question involving matters 
within their domain. 5 The highway department also 
holds examination and issues certificates of competency 
to applicants for the position of county engineer. 6 * 

4 S. L. 1919, Chap. 211. 

“Bunn Supp. Sec. 7634c; S. L. 1915, Oh, 173, Art. 1, Sec. 3 

^Bunn Supp. Sec. 7634s: S. L. 1921 Chap. 74; S. L. 1915, Ch. 
173, Art. II. Sec. 1. 



456 


Government of Oklahoma 


The highway department acts as the engineering 
branch of the state government. It is required to fur¬ 
nish engineering service in “drainage, sanitation and 
other public improvements” when required by any de¬ 
partment of the state. Any municipality of the state 
may request the department to pass upon “prospects 
and plans” for its water supply. The actual and neces¬ 
sary expenses of such an examination are paid by the 
municipality, and the expense connected with any work 
away from the seat of government is borne by the or¬ 
ganization or persons receiving the benefit thereof. 6 

The chief purpose, however, for which the state high¬ 
way department was organized was to create a state¬ 
wide system of improved roads. The method adopted 
was to place the initiative in planning this system and 
the responsibility for carrying out the plans upon the 
counties of the state, vesting in the highway depart¬ 
ment power to approve, reject and supervise the plans and 
their execution. 

The county commissioners of each county are re¬ 
quired to designate from ten to fifteen per cent of the 
total road mileage of the county as “state roads.” This 
mileage must be outside of the limits of cities and towns 
of more than two thousand population, must be main 
traveled roads, and must be located so as to connect 
with state roads in adjoining counties. 7 8 The selection 
of state roads must be approved by the highway de¬ 
partment, 5 and in the event that the commissioners of any 
county fail to make such a designation, the state high¬ 
way department is authorized to do so. 


6 Bunn Supp. See. 7634c; S. L. 1915. Ch. 173, Art. I. Sec 3 

T Bunn Supp. Secs. 7634*, ff; S. L. 1915, Oh. 173, Art. II, Secs. 
1, ff. 

8 Bunn Supp. Secs. 7634i-j; S. L. 1915, Oh. 173, Art. II, S^cs. 3-4 



Highway Administration 457 

The county engineer of each county surveys the state 
roads and prepares plans for their permanent improve¬ 
ment, in accordance with the standards established by 
the state highway department, and with certain stand¬ 
ards prescribed by law . 9 Plans so prepared, after ap¬ 
proval by the county commissioners, must be submitted 
to the department for its approval . 10 After the approval 
is secured, the county may proceed with its program of 
improvement, subject only to detailed legal provisions 
relating to the letting of contracts, payments, etc . 11 

The law provides very specifically for the planning of 
the state road system in accordance with the standards 
set up by the state highway department, but does not 
set up any effective way by which the construction of 
roads in accordance with the plans as made and ap¬ 
proved is assured. Compliance of the counties with the 
requirement as to the submission of plans is induced by 
providing for a state highway construction fund, sup¬ 
ported by an annual ad valorem general property tax 
of one-fourth mill, which is held in trust by the state, 
each county being entitled to share in the fund to the 
amount of the tax collected from that county, provid¬ 
ing it has complied with the law in regard to filing and 
securing approval of road plans, and has also levied 
an ad valorem road tax of one-fourth mill . 12 But after 
the plans have once been made and approved, the on¬ 
ly procedure provided for their enforcement is through 
annual reports as to progress of work, made by the 
counties to the highway department . 12 Mo provision is 

9 Bunn Supp. Sec. 7634k: S. L. 1915, Ck. 173, Art. II. Sec. 5 

,0 Bunn Supp. Sec. 76341; s. L. 1915, Ch. 173, Art. II, Sec. 6 

“Bunn Supp. Sec. 7634m, ff; S. L. 1915, Ch. 173. Art. II. Secs. 7. 
ft. 

“Bunn Supp. Secs. 7634x-z; S. L. 1915, Ch. 173. Art. III. 

“Bunn Supp. Sec. 7634s; S. L. 1915, Oh. 173. Art. II, Sec. 13 



458 


Government of Oklahoma 


made for inspection or supervision of the road work 
by the department. In 1917 an appropriation of two 
million dollars was made to be used in giving state aid, 
in proportion to area and population, in highway con¬ 
struction, to counties which provided an equal amount 
for the same purpose from their own funds. This fund 
was to be expended under the jurisdiction of the high¬ 
way department, which was authorized to make the 
surveys, plans and specifications, to supervise the con¬ 
struction work and to require the county authorities 
to maintain the roads so built on penalty of forfeiting 
future state aid. 14 The 1923 legislature passed a highway 
law (S. L., Ch. 112) which modified in some particulars 
the provision described above, and gave much wider 
supervisory powers to the state commissioner of high¬ 
ways. It also made certain salary changes. 

The 1915 highway law provided for the registration 
of all motor vehicles operated within the state. This 
registration was entrusted to the highway department. 
At the time of registration, which occurs annually, a 
registration fee was to be collected which should be in 
lieu of all other taxes, state and local, upon motor ve¬ 
hicles. 15 In 1919 this law was replaced by a new enact¬ 
ment which changed the basis of computing the amount 
of the fee, and the regulations governing expenditure 
of the proceeds. 16 As the law now stands, 17 the high¬ 
way department is entrusted with the registration of 
vehicles and the collection of fees. It is also the duty 
of the department to enforce the registration law, and 

14 S. L. 1917, Chap. 238. 

15 Bunn Supp. Chap. 73 Art. I-A, Sees. 7634zl-7634zl2 ■ S L 
1915, Oh. 173, Art. IV. 

1G S. L. 1919, Chap. 290. 

17 1922 



Highway Administration 


459 


special enforcement officers 18 are employed for this pur¬ 
pose. Of the money collected, ten per cent is paid to 
the state treasurer and placed to the credit of the 
general revenue fund of the state. The remaining 
ninety per cent is paid to the treasurers of the respec¬ 
tive counties in proportion to the total amount of the 
fees collected from each county. Of this total, each in¬ 
corporated town and city receives for its street and 
alley fund twenty-five per cent of the total sum received by 
the county treasurer by virtue of motor licenses collect¬ 
ed in such town or city. Of the remainder, fifty per 
cent is credited to the county road maintenance fund; 
the other fifty per cent goes to the “state highway 
construction fund” of the county and is applied on the 
building of the “state road” system. 

By the Act of July 11, 1916, 19 the United States gov¬ 
ernment inaugurated the policy of appropriating money 
to aid in the construction of “rural post roads” 20 in the 
several states. The Act provides for the apportionment 
of the sums so appropriated among the several states 
in proportion to their area, to their population and to 
the mileage of rural free delivery and star routes within 
their borders, one-third of the total being distributed 
according to each factor. 

These funds are apportioned by the Secretary of Ag- 
Ticulture and are expended under his direction in co- 

18 S. L. 1919, Chap. 211 

19 39 Stat. L. 355, Fed. Slat. Ann. 1918 Supp. 639 

20 This term has received very liberal interpretation. A rural 
post road may be defined as any road 'outside the limits of a city 
or town of over 2500 population, or along which the average dis¬ 
tance between houses is greater than 200 feet, over the substantial 
length of whicA the United States miails are how transported or may 
reasonably be expected to be transported in the immediate future. 
See 31 Op. Atty. Gen. 109. (1917) Fed. Stat. Ann. 1920 Supp. 

722, note. 



460 


Government op Oklahoma 


operation with the highway departments of the sev¬ 
eral states, upon “projects'’ submitted by the depart¬ 
ments, and approved by the Secretary. Plans, specifica¬ 
tions and estimates of cost are prepared by the state 
authorities subject to the approval of the Secretary, and 
subject also to the requirements prescribed by the stat¬ 
ute. Contracts are let and construction is carried on 
under the laws of the several states and under the di¬ 
rect supervision of the state highway departments, but 
in compliance with the requirements of the federal act, 
and subject to the inspection and approval of the fed¬ 
eral authorities. The maintenance of these roads is 
placed on the states and their subdivisions, on penalty 
of losing future federal aid if they fail to maintain 
them properly. 

In Oklahoma, since the state does not directly engage 
in the construction of roads the initiative in taking ad¬ 
vantage of this proffer of federal aid rests with the 
counties. Project plans, specifications, etc. are all pre¬ 
pared by the several counties and submitted to the 
state highway department for approval, The depart¬ 
ment inspects the various projects, and if it approves 
them, submits the project statements, etc. to the De¬ 
partment of Agriculture as provided by the federal law. 
The highway department approves all contracts, super¬ 
vises, inspects and accepts -the work of construction, 
and has custody of the money appropriated by the 
county to pay its share of the cost. All payments, both 
from county money and from federal aid funds are 
made by the state highway department on verified claims 
for work done and materials furnished. 

CRITICISMS AND RECOMMENDATIONS 

The criticism of highway administration in Oklahoma 


Highway Administration 


461 


from the governmental viewpoint presents two main as¬ 
pects : first, the relationship of the state highway de¬ 
partment to the state administration in general; second,, 
the present apportionment of highway functions be¬ 
tween the state and the local governments. 

The place of the state highway department in the state 
administration has been discussed elsewhere in this book. 
It is sufficient to say here that the fact that the head of 
the department is appointed by the governor and holds of¬ 
fice at the pleasure of that official is conducive to executive 
responsibility for the conduct of the department. How¬ 
ever, this responsibility is to a considerable extent done 
away with by the interference of independent administra¬ 
tive departments, and by the feeling which in large meas¬ 
ures comes from that situation, that it is no use to blame 
the governor when things go wrong. Some minor reorgan¬ 
ization of the department itself is desirable. Its usefulness 
would be considerably increased by reorganizing it into a 
department of public works, and placing it in charge of all 
of the architectural, engineering and construction work of 
the state. This proposal is discussed more fully in a prev¬ 
ious chapter. 

Oklahoma’s present system of highway administra¬ 
tion has been in operation since 1915. It must be ad¬ 
mitted that so far it has failed to produce a real sys¬ 
tem of state highways, except on paper. What con¬ 
struction of improved roads there has been in the 
state is almost exclusively the result of programs 
carried out by the richer and more progressive coun¬ 
ties. These isolated improvements do not constitute 
a state road system, and there is no assurance that 
they ever will, since poor or sluggish counties may re¬ 
fuse to complete the missing links. Even the system 
of improved dirt roads contemplated by the original 


462 


Government of Oklahoma 


law has not been built or maintained. 

There are several features of the present system of 
road administration which have made this situation 
practically inevitable. In the first place, since the 
county commissioners designate those roads which 
form the state system, local and personal considera¬ 
tions have played a large part in this selection. A 
commissioner’s personal desire to have a good road 
past his house, or a desire to accommodate influential 
individuals, frequently determines the location of a state 
highway to the exclusion of the best interests of the system. 
Even the mandate that the state roads in each county should 
connect with each other has not always been observed. In 
the second place, the law does not provide adequate means 
by which the construction of roads according to the plans 
and specifications laid down by the highway department 
can be enforced. As we have seen, the initiation of plans 
rests with the counties. The carrying out of these plans 
rests also with the counties. The only authority which the 
state highway department exercises as of right is that of 
approving or rejecting these plans after they have been sub¬ 
mitted to it. It has no right to demand the submission 
of plans, other than as furnished by the power of with¬ 
holding approval of improper plans. After the plans have 
been accepted, the department has only advisory power. It 
has no right to take charge of construction itself, and no 
right of inspection, except as to federal and state aid pro¬ 
jects. As a result, the amount and quality of the work 
actually done upon the state road system is entirely at the 
discretion of the various counties, and in many instances 
this discretion has not resulted in either sufficient work or 
lasting improvement. 

In considering to what agencies the care of high- 


Highway Administration 


463 


ways should be entrusted, we should bear in mind 
that the authority which “bosses the job” will be the 
one which ultimately determines what sort of road 
system shall be established, and that accordingly, ad¬ 
visory, or recommending authority is not to be relied 
upon as a means of control; if our roads demand 
state control, then the actual authority as to road 
policy, the final word in such matters, must be given 
to the state. We should also remember that there 
are two objects to be attained by the road-building 
program, viz., the creation of a statewide system of 
main roads to provide for long distance transporta¬ 
tion and communication between different parts of 
the state, and the development of good local roads 
as feeders to the main system so that every farmer 
may have a good road to his market town and to his 
county seat. .The main system of highways will find 
its chief usefulness in the accommodation of tourist 
and other passenger travel, and in the transportation 
of freight by motor truck. To serve this traffic, it 
must connect the chief centers of the state by the 
most direct route, it must be planned as a unit, its 
different sections must connect with each other to 
form a statewide system. This can only be done when 
the selection of termini and the choice of route is 
vested in some organ of the state administration. 
Moreover, since the traffic over these main roads 
will be very heavy, some form of hard surface con¬ 
struction plus adequate maintenance of the surface 
must be provided. This calls for the expenditure of 
considerable sums of money, and for the employment 
of the highest type of technical skill in planning, con¬ 
struction and maintenance. This can be insured for 
the entire system only when the entire responsibility 


464 


Government of Oklahoma 


for the main highway system is centralized in the 
state administration, since individual counties may not 
wish to undertake the financial burden involved, may 
not be able or willing to secure the technical service 
needed, may desire to evade in some way the stand¬ 
ards set up for the state road system. Moreover, the 
policy of the federal government, as indicated by re¬ 
cent legislation, contemplates that federal aid money 
shall be used in building roads which form part of a 
connected statewide system, looking toward the weld¬ 
ing of the different state systems into a national sys¬ 
tem. 

The problem of the feeder roads is essentially dif¬ 
ferent. The object there is to secure good local roads, 
reaching to every neighborhood, to every farm, so far 
as may be possible. The planning of such a system 
can be handled much better by local „ officials, who 
are in touch with local conditions and needs than it 
can by a state organization. Since the traffic is light, 
the expensive construction and technical skill re¬ 
quired for the main roads will not be necessary, and 
the county administration will be able to give to 
them the special attention which they need, but probably 
would not get from the state highway department. 

In view of these facts, it is suggested that the con¬ 
struction, care and maintenance of the main roads 
should be vested in the state highway department, 
or in the proposed state department of public works. 
The counties, on the other hand, should be given en¬ 
tire charge of the construction and maintenance of the 
feeder roads, subject only to such general supervision 
and advice as the state might find expedient in order 
to secure minimum standards of efficiency and ac¬ 
complishment. This should be administered either 


Highway Administration 


465 


by the state highway department, or by the proposed 
department of local government. In this way the 
main arteries of traffic would be developed as a uni¬ 
fied system, while the local roads would be left in 
the hands of those primarily interested in them, sub¬ 
ject only to the guidance and supervision of the state 
in matters of policy. The administration of the au¬ 
tomobile license tax is primarily a matter of finance, 
not of highway administration, and should be han¬ 
dled as such. This tax could be collected by the 
financial department of the county government just 
as other state taxes are collected, the state’s share 
being paid to it by the local financial authorities. 
This would simplify the accounting problem of the 
state, by reducing the number of financial agencies, and at 
the same time would relieve the state highway department 
of a task in no wise connected with its other duties. 


CHAPTER XVII. 


EDUCATION. 

Supervision of the public school system of Oklaho¬ 
ma is placed in the hands of a state superintendent 
of public instruction, who is elected by the people 
for a term of four years; and a state board of edu¬ 
cation. The superintendent of public instruction is 
the president of this board. The remaining mem¬ 
bers are six in number, and are appointed by the 
governor, with the approval of the senate, for terms 
of six years, two retiring in each odd-numbered year. 
Two of these members must be “practical school 
men/’ 

The duties of the state board of education and of 
the state superintendent of public instruction are 
laid down by law in great detail; but it is not nec¬ 
essary to list them here, as their nature is well under¬ 
stood. 

The state superintendent appoints three high school 
inspectors, who shall “visit all schools * * * doing 
high school work, consult with high school superin¬ 
tendents, principals, and boards of education, assist 
them in standardizing their schools and affiliating them” 
with the institutions doing work of college rank. High 
schools which do approved work are placed on the accredited 
list, and their graduates are allowed to enter without exam¬ 
ination the state university, the normal schools, and other 
institutions of higher learning, upon the presentation of 
certificates. The inspectors also visit schools of college 
rank, in order to familiarize themselves with the work of 
such schools, and thus make possible close correlation be¬ 
tween high schools and colleges. Another duty of the de- 

(400) 




Education 


467 


partment of high school inspection is to conduct a free em¬ 
ployment bureau for teachers. 1 

County superintendents of public instruction are 
elected every two years. They are required to visit 
every school in the county “at least once in each term 
of six months, correcting any deficiency that may exist 
in the government of the school, the classification of 
the pupils, or the method of instruction in the several 
branches taught” and making “such suggestions in pri¬ 
vate to the teachers as (they) shall deem proper and 
necessary to the welfare of the school.” 2 Many other 
duties are laid upon the county superintendent, among 
which may be mentioned the keeping a register of the 
teachers employed in the county, and various other rec¬ 
ords; and the apportioning of school funds “among the 
school districts and parts of districts in such county in 
the ratio of the number of persons of school age who 
are entitled to receive the same.” 3 He sends in an 
elaborate annual report to the state superintendent of 
public instruction. 

SCHOOL DISTRICTS 

The county superintendent of public instruction di¬ 
vides the county into school districts, or changes exist¬ 
ing districts, under certain detailed restrictions. 4 Each 
school district is organized “when the officers constitu¬ 
ting the district board shall have been elected and qual¬ 
ified and shall have signified their acceptance to the 
county superintendent of public instruction in writing.” 5 
A school district so organized becomes a body corporate, 

1 S. L. 1919, Ch. 80 

2 S. L. 1913, Ch. 219, Art. 2 

3 S, L. 1915, Ch. 250 

4 S. L. 1919, Ch. 223 

8 S. L. 1913. Ch. 219. Art. Ill, Sec. 3 



468 


Government of Oklahoma 


and “may sue and be sued, and be capable of contract¬ 
ing and being contracted with, and holding * * * real 
and personal estate. ,,e Special provisions of the law 
cover the disorganization or division of school districts' 
and the formation of joint districts “lying partly in two 
or more counties.” 6 7 8 

An annual school meeting or election is held on the 
last Tuesday in March, at which all qualified electors 
of the district may vote. At such meetings members of 
the school board are elected, and such other matters are 
voted upon as the law designates, including the selec¬ 
tion of a site for a schoolhouse, and the length of the 
school term for the ensuing year, “which shall not be 
less than three months.” 9 Special school elections may be 
called to vote on bonds for the erection of schoolhouses, 
or other matters. 

The members of the district school board are a di¬ 
rector, a clerk and a member, who hold office for three 
years, one retiring each year. The most important duty 
of this board is to “purchase or lease a site for a school- 
house as shall have been designated by the voters * * * 
and * * * build, hire, or purchase such school house as 
the voters of the district, in a district meeting, shall 
have agreed upon, out of the funds provided for that 
purpose.” 10 This board also hires teachers, whom it 
may dismiss for “incompetency, cruelty, negligence or 
immorality,” 11 and has supervisory powers over the 
schools of the district. The county treasurer acts as 

6 Ibid. Sec. 4 

7 S. L. 1917, Ob. 97 

8 S. L. 1913, Ch. 219, Art. IV, Sec. 1. 

9 Ibid. Art. Ill, Sec. 12 

10 Ibid. Art. V. Sec. 14 

u Ibid. Art. V. Sec. 17 



Education 


469 


custodian of the funds of all school districts within the 
county, except independent districts. 12 

When it is necessary to form a school district “lying 
partly in two or more counties,” the superintendents of 
public instruction of these counties shall “meet and pro¬ 
ceed to lay off and form the same into a school district.” 
This action is taken when application is made by five 
resident householders. The district thus formed is 
called a joint district and is placed under the jurisdic¬ 
tion of the superintendent of public instruction of the 
county “having the largest amount of territory em¬ 
braced within the boundaries of such joint district.” 
“If in the alteration of, or refusal to alter, the boun¬ 
daries of any joint school district, any person or persons 
shall feel aggrieved,” they may appeal to the state su¬ 
perintendent of public instruction, who shall hold a 
hearing on the matter. The language of the law is very 
ambiguous, but it appears to mean that the decision 
reached by the state superintendent is binding upon the 
county superintendents. 13 

“Each city of the first class, and each incorporated 
town maintaining a four years high school fully accred¬ 
ited with the State University, shall constitute an inde¬ 
pendent district .” 14 “Two or more adjacent indepen¬ 
dent school districts may be united for school purposes 
* * * in order to maintain a stronger school system than 
either of the districts can maintain alone.” 15 This union 
is accomplished by means of a special election; and the 
united district so formed possesses corporate powers. 
The board of education in the united school district con- 

- . „ I 

12 S. L. 1921. Ch. 70 

13 S. L. 1913, Oh. 219, Art. IV 

“Ibid. Art. VI, Sec. 1 

15 S. L. 1919. On. 69 



470 


Government op Oklahoma 


sists of “one member elected from each ward of each 
city in the united district, and a treasurer who shall be 
elected from the * * * * district at large." Except where 
especial provisions are made governing united school dis¬ 
tricts, the laws in regard to independent districts apply. 

Members of the board of education in independent 
districts serve for four years. A part of them retire 
each two years, and their successors are chosen at the 
biennial general election. One member serves from 
each ward and one from outlying territory; or, if there 
be no outlying territory, one member is chosen from 
the city at large." In cities of more than 25,000 no 
representation is given to any portion of the school dis¬ 
trict which may be outside the city limits; 15 and in cities 
of more than 50,000 two members of the board of edu¬ 
cation are elected from each ward, provided that the 
number of wards is not more than five. 19 The treasurer 
of the city school board is elected for a two year term, 
at the general municipal election. 20 To the above pro¬ 
visions of the law are attached clauses specifically ex¬ 
empting charter cities from their jurisdiction, and per¬ 
mitting such cities to arrange these matters for them¬ 
selves. 21 Boards of education in independent districts 
“shall have power to elect their own officers, except 
the treasurer; to make their own rules and regulations, 
subject to the provisions of this article; to organize and 
maintain a system of graded schools; to establish a high 
school * * * and .to exercise the sole control over the 
schools and school property of the city.” 22 They also 

lfl Ibid. 

*S. L. 1919, Ch. 97 

19 S. L. 1913, Ch. 219, Art. VI, Sec. 6a 

"S. L. 1919, Ch. 43 

M S. L. 1915, Ch. 27S 

”S. L. 1913, Oh. 219. Art VI. Sec. 8 



Education 


471 


elect teachers and perform the other regular duties of 
school boards. 

Any two or more “adjacent school districts or parts 
of districts or territory,” containing an area of not less 
than twenty-five square miles, and an assessed valuation 
of not less than $200,000, may, by vote of the electors 
therein residing, be joined into a consolidated school 
district . 23 Special state aid is given to such districts, so 
that they may build adequate schools. 24 Pupils in a con¬ 
solidated district who live more than two miles from 
the school are furnished with transportation to and 
from school. 

Union graded districts may also be formed from two 
or more adjacent school districts, by means of a vote 
taken at a special school meeting. A board is chosen 
at the same time, to have charge of all schools in the 
union graded district. Such a district may “establish 
a central school in which instruction shall be given to 
all pupils above the sixth grade, to and including the 
regular high school work, and such work shall not be 
duplicated in other schools of the union graded school 
district.” 25 These districts also receive state aid. 

Any one district may establish a graded or high 
school under the same provisions that apply to union 
graded districts. 26 

For some reason unknown to the writer, the time for 
the annual meeting of the union graded school district 
is fixed as “the last Saturday before the first Tuesday 
in June,” from two to six o'clock p. m. 27 

“S. L. 1919, Ch. 186. 

^See Chapter X, p. - 

25 S. L. 1921, Ch. 117 

*S. L. 1913, Ch. 219, Art. VIII, Sec. 6 

27 Ibid. Sec. 7 




472 


Government of Oklahoma 


SCHOOL BUILDINGS 

Standards of construction and cleanliness are laid 
down by law for all school buildings “hereafter * * * 
erected in the State of Oklahoma at a cost of four hun¬ 
dred dollars, ($400.) or more. ,, The state superinten¬ 
dent of public instruction is required to prepare a book 
of plans and specifications for school buildings of one, 
two, three, and four rooms; and to furnish such plans 
and specifications free upon application by any school 
board. These provisions do not apply to buildings cost¬ 
ing more than ten thousand dollars.'" 

CURRICULUM 

The law provides that in every school district “there 
shall be taught agriculture, orthography, reading, pen¬ 
manship, English grammar, physiology and hygiene, ge¬ 
ography, U. S. history and civics, arithmetic and such 
other branches as may be determined by the state board 
of education.” 28 All instruction in these branches is to 
be given in the English language; 30 and no other lan¬ 
guage may be taught in grades lower than the ninth. 31 
Special stress is to be laid upon “American history and 
civics.” 32 Oklahoma history is also taught. 33 

The state high school inspector is required to “prepare 
and articulate” courses of study for high schools. 34 One 
year of “American history and civics” is made a prerequi- 


28 S. L. 1919, Ch. 63 

"s. L. 1913, Oh. 219, Art. Ill, Sec. 1 

30 Ibid. 

31 S. L. 1919, On. 141 

32 S. L. 1921, Oh. 112 

33 Ibid. 

L. 1919, Ch. 80 



Education 


473 


site to graduation from any high school, public or private/ 5 
Special provision is made for the study of agriculture, 
A state commission of agricultural and industrial educa¬ 
tion is created, consisting of the state superintendent of 
public instruction as ex officio chairman, the president 
of the state board of agriculture, and the president of 
the Agricultural & Mechanical College. “Said commis¬ 
sion shall conform to the rulings of the state board of 
education, shall co-operate with all state normal schools, 
the Agricultural & Mechanical College and the state 
board of agriculture, and said boards and institutions 
are hereby required to co-operate with the state com¬ 
mission of agricultural and industrial education as far 
as practical (sic), and without interfering with the 
more immediate duties of said boards and institutions/’ 36 
All teachers in the public schools are required to pass 
“a satisfactory examination in the elements of agricul¬ 
ture and allied branches;” 37 and all public schools are 
required to embody in their curricula :“the elementary 
principles of agriculture, horticulture, animal husband¬ 
ry, stock feeding, forestry, building county roads, and 
domestic science, including the elements of economics/” 5 
Short practical courses in agricultural schools are provided, 
to which all white persons over fifteen years of age are 
admitted without examination/ 9 

Among the other things which are required by law 
to be taught in the public schools are: reverence for 
the flag of the United States 40 , morality 41 , kindness to 

35 S. L. 1921, Ch. 112 

36 S. L. 1913. Ch. 219. Art. X. Sec. 1. 

37 Ibid. Sec. 5 
^Ibid. Sec. 2 
39 Ibid. Sec. 13 
40 S. L. 1921, Ch. Ill 

41 S. L. 1913, Ch. 219. Art. XVII, Sec. 7 



474 


Government op Oklahoma 


animals and birds 42 , and the evil effects of alcohol. 43 Ex¬ 
periments “upon any living creature” are forbidden in 
the public schools. 44 No sectarian or religious doctrine 
shall be taught or inculcated in any of the public 
schools of this state; but “the reading of the Holy Scrip¬ 
ture” is permitted. 45 

As a matter of practice, the curricula of the public 
schools, while based upon the state laws, vary a good 
deal from one district to another, according to local 
needs and the enterprise and imagination of the school 
authorities. 


COUNTY HIGH SCHOOLS 

In counties where there are fewer than 2,000 persons 
of school age, county high schools may be established. 
The county superintendent of public instruction, and six 
trustees (two from the district of each county commis- 
sioner'* * chosen at general elections on a separate bal¬ 
lot without party designation, constitute the board of 
trustees of the county high school. The trustees serve 
for four-year terms, half of them being elected at each 
general election. The county superintendent acts as sec¬ 
retary and executive officer of the board of trustees; 
and the board choose their own chairman- The duties of 
the county board of trustees, which are set forth by 
law in some detail, are similar to those of other school 
boards. The county high school is supported by a county 
levy made by the excise board on the basis of an estimate 
furnished by the board of trustees. 48 

4 Tbid. Sec. 8 

*S. L. 1915, Oh. 10 

“S. L. 1913, Ch. 219. Art. 17, Sec. 9 

4t Tbid. Sec. 5 

*S. L. 1919, Oh. 96 



Education 


475 


COMPULSORY SCHOOL ATTENDANCE. 

Oklahoma’s astonishingly lax school attendance re¬ 
quirements are as follows: “It shall be unlawful for 
any parent, guardian or custodian, living in the state of 
Oklahoma, to neglect or refuse to cause or compel any 
person or persons who are or may be under his control 
as children or wards to attend and comply with the 
rules of some public, private, or other schools unless 
other means of education are provided, for sixty-six and 
two-thirds per cent of the term the schools of the dis¬ 
trict are in session, which shall apply to all children 
of the district over the age of eight and under the age 
of eighteen, unless they are prevented by mental or 
physical disability, the question of disability to be de¬ 
termined by the school district board or board of edu¬ 
cation upon a certificate of a duly licensed and prac¬ 
ticing physician; provided, however, that this require¬ 
ment shall not apply to a child between the ages of six¬ 
teen and eighteen years, who is (1) regularly and law¬ 
fully employed and has satisfactorily completed the work 
of the eighth grade of public schools or its equivalent, or 
(2) who has satisfactorily completed the full course of in¬ 
struction provided by the public schools of the district 
where he resides.” 47 

“The law’s weakness lies in the clause compelling the 
presence of a child for only two-thirds of the school 
term. In the first place, it is often impossible to de¬ 
termine until the end of the school year whether the 
child has been present the required length of time. Un¬ 
less he has been absent more than one-third of the time 
it is impossible to prosecute the parent. There is no good 
reason why the child should not be compelled to attend 


r S. L. 1919, Ch. 59 



476 


Government of Oklahoma 


school during the entire term. If he attends only part 
of the term it is difficult for him to do the work required 
for promotion, and retardation commonly results. * * * 
“Not only is the law itself at fault, but provision 
for its enforcement is inadequate. The law states: 

Tt shall be the duty of the School District Board 
or any person living in the district, to make com¬ 
plaint to the Justice of the Peace of the township 
in which the school district is situated, against any 
person failing or refusing to comply with the pro¬ 
vision. It shall also be the duty of the teacher of 
the school to ascertain if any person is absent 
without a proper excuse, and if so, to advise the 
County Superintendent of Public Instruction of that 
fact. Such County Superintendent shall then report 
such information to the County Attorney of the 
County, who shall file complaint in any Justice 
Court of the county where the offending party re¬ 
sides.’ 

“One of the weak spots in this provision is that the 
authority for enforcing the law is not placed in the 
hands of one person, for the district board, the coun¬ 
ty superintendent, and indeed, any person may bring 
action. As a result, each places the responsibility on the 
other. The superintendent says ‘it’s up to the district 
board,’ while the local board members refuse to pro¬ 
secute their own neighbors and friends. As a result the 
law almost invariably is unenforced. A second disad¬ 
vantage rests in the fact that the county superintend¬ 
ent is elected by the people. In order to carry out the 
provisions of this law he must prosecute some of the 
very people upon whom he depends for re-election.” 48 

‘“Child Welfare in Oklahoma, pp. 78-74 



Education 


477 


CHILDREN OF INDIGENT MOTHERS 

Boards of county commissioners are required to in¬ 
clude in their financial estimates a sum not to exceed 
eight thousand dollars “for the partial support of in¬ 
digent women whose husbands are dead or insane, or 
prisoners in any state institution, providing such women 
are mothers of children under the age of fourteen years, 
and such mothers and children reside in such county.” 49 
Ten dollars a month for the first child and five dollars 
a month for each additional child is the maximum al¬ 
lowance that may be made; and when any child reaches 
the age of fourteen years the allowance for his benefit 
shall cease. 60 “The county court may, at its discretion 
. . . . . discontinue or modify the allowance to any 
mother and for any child.” 51 Should the fund be insuf¬ 
ficient to relieve all cases, “the county court shall select 
those cases in most urgent need of such allowance.” 52 

These provisions, which are included in the school 
law because their manifest intent is to make it possible 
for the children of an indigent mother to remain in 
school, are supplemented by the following section: 53 

“If any widowed mother shall make affidavit to the 
effect that the wages of her child or children under 
sixteen years of age are necessary to the support of 
such widowed mother, then the county superintendent 
of public instruction shall, after careful investigation, 
upon the recommendation of the school district board, 
or board of education, furnish such child or children 
a certificate called a ‘scholarship 2 , stating the amount of 

"S. L. 1915, On. 183 

“Ibid. 

“Ibid. 

“Ibid. 

W S. L. 1913, Ob. 219, Art. XIII, Sec. 4 




478 


Government of Oklahoma 


wages such child or children are receiving, or so much of 
such wages as shall be deemed necessary so long as such 
child or children shall attend the public school in accord¬ 
ance with the provisions of this article, which aid shall 
be allowed and paid upon the certificate of the county 
superintendent of public instruction to the child or chil¬ 
dren holding such scholarship by the county commission¬ 
ers/’ 

CHILD LABOR 

The child labor laws of Oklahoma are somewhat con¬ 
fused and contradictory. They provide that “no child 
under the age of fourteen years shall be employed or 
permitted to work in any factory, factory-workshop, 
theatre, bowling alley, pool hall, or steam laundry, and 
no child under the age of fifteen years shall be employ¬ 
ed or permitted to work in any occupation injurious to 
health or morals or especially hazardous to life or limb.” 
What occupations are included in the foregoing classi¬ 
fication is a matter to be determined by the commis¬ 
sioner of labor. His “decision shall be final until such 
occupation or occupations shall be defined by law as 
safe for health, morals, life and limb.” 54 

A special list of dangerous occupations is embodied 
in the law, and children under sixteen are forbidden 
to work at these. 55 However, a subsequent provision that 
“no child under the age of sixteen years shall be em¬ 
ployed” in these occupations, “unless such child is able 
to read and write simple sentences in the English lan¬ 
guage, or shall have attended some school during the 
preceding term for the time that attendance is com¬ 
pulsory under the laws,” 55 operates almost as a reversal 

M R. L. mo, Sec. 3728 

“Ibid, Sec. 3729. 

“Ibid. Sec. 3731 



Education 


479 


of the foregoing prohibition. Special provisions are made 
in regard to certificates of age and schooling for child¬ 
ren under sixteen who wish to be employed in the 
listed occupations. 57 Night work in these occupations is 
prohibited to boys under the age of sixteen and girls 
under the age of eighteen. 58 Girls under sixteen are for¬ 
bidden to sell papers on the street or in any public 
place outdoors. 59 “No child under sixteen, and no girl 
or woman, may work underground in a mine or quarry.” 60 
“No child under the age of sixteen years shall be em¬ 
ployed or permitted to work in any gainful occupa¬ 
tion, except agriculture or domestic service, more than 
eight hours in any one day, allowing one hour each day 
for noonday meal and rest, or more than forty-eight 
hours in any one week. During the time that a child 
is at work at such occupation, the employer must pro¬ 
vide suitable seats and permit their use so far as the 
nature of the work allows.” 61 

It is generally agreed that the child labor problem 
in Oklahoma is not serious, except in rural districts. 
“This fortunate scarcity of children in most of the in¬ 
dustries is due to several factors. Oklahoma is a new 
state and her industrial development is just beginning. 
From now on the further division of labor and use of 
mechanical devices will increase the demand for cheap 
workers and steps should be taken to prevent possible 
exploitation in the future. The progressive attitude of 
the people towards education is helping to develop a 
rational attitude toward child labor which should be 
cultivated and encouraged in every way. Many of the 

57 Ibid. Secs. 3734-3736 (as amended by S. L. 1917, Oh. 182). 3738 

58 Ibid. Sec. 3733 

'"Ibid. Sec. 3730 

e Tbid. Sec. 3739 

M Ibid. Sec. 3732 


480 


Government op Oklahoma 


citizens came from progressive communities and believe 
that so far as children are concerned, education should 
take precedence over employment. Another favorable 
factor is the workman’s compensation law which acts 
as a deterrent because it is not to the employer’s in¬ 
terest to hire children as they are more liable to in¬ 
jury than adults. The eight-hour workday for minors 
under sixteen years has caused some establishments to 
employ only persons over that age, and the State De¬ 
partment of Labor in endeavoring to enforce the pro¬ 
visions of the child labor law has contributed toward 
reducing the abuse of children in industry. But there 
are phases of the problem as yet untouched by law and 
hence beyond the control of any administrative office.” 62 

The child on the farm or employed in domestic ser¬ 
vice is, as we have seen, unprotected by any law ex¬ 
cept that requiring his attendance at school for two- 
thirds of each term. Oklahoma is an agricultural state, 
and one of its most important crops is cotton. The culti¬ 
vation and the picking of this crop are accomplished 
largely through the labor of children; and many of the 
state’s most enlightened citizens are convinced that this 
is a necessary and inevitable situation. “In the spring¬ 
time we find the children aiding in the work of pre¬ 
paring the soil for the planting of cotton, corn, grain 
sorghums, etc. As soon as these crops are up, we see 
them hoeing, weeding, and cultivating. Frequently child¬ 
ren are found doing work, especially in the handling 
of teams and cultivators, that is unquestionably beyond 
their strength. At harvest time we find them shocking 
the wheat and oats, shucking the corn, and picking the 
cotton. The work is hard and the hours are long. It is 

6a Child Welfare in Oklahoma, p. 106 



Education 


481 


no uncommon sight to see the whole family—father, 
mother, and children even as young as five years—go¬ 
ing down the cotton rows, dragging long bags fastened 
about the neck and shoulders, picking from dawn to 
dark . . . One sees the children robbed not only of 
their schooling, but also of their right to normal child¬ 
hood, where play has its legitimate part.” 63 

There is a growing conviction, strengthened, perhaps, 
by the participation of women in public affairs, that 
the state should not allow its child citizens to be ex¬ 
ploited in this fashion, even by their own parents and 
for the support of their own family. Aside from the 
fact that no child ought to be responsible for this bur¬ 
den, which properly belongs to his parents, there are 
many cogent arguments for the limitation of child labor 
on the farm; of which those falling within the state's 
sphere of action are: the necessity for protecting the 
child's health, and for securing to him the education 
essential to the citizens of a democracy. The child on 
the farm will be seriously handicapped both physically 
and mentally until a more stringent child labor law and 
an adequate compulsory school attendance law are 
placed upon the statute books and rigidly enforced. 

When twenty or more children from sixteen to eight¬ 
een years of age in any school district shall be employ¬ 
ed (presumably at work other than domestic or agri¬ 
cultural, though the law does not say so), the board 
of education of the district is required to maintain part 
time schools for such children, for not less than one 
hundred and forty-four hours each year. Parents, guar¬ 
dians, and public officials responsible for school attend¬ 
ance are responsible for the attendance of the employed 


■ 6 Tbid. Page 133 



482 


Government of Oklahoma 


children at the part time school. Employers are for¬ 
bidden to employ children except under such condi¬ 
tions as will permit their attendance at the part time 
school or class; but the law does not apply to children 
over sixteen who have completed a common school 
course and two years of high school. 64 

A state board of vocational education, co-operating 
with the Federal Board of Vocational Education, ad¬ 
ministers the state and federal funds available under 
the Smith-Hughes Act 65 and an Oklahoma act of 1917 66 . 
This state board makes rules and regulations governing 
part-time classes; and reimburses districts which meet 
its standards to the amount of fifty per cent of the sal¬ 
aries of teachers, from the Federal Fund. 67 

An Americanization commission, consisting of the 
governor of the state and six members appointed by 
him, is given power to “do all things necessary to carry 
out the intention 77 of a joint resolution of 1919, 68 pro¬ 
viding that the public school authorities in the state 
shall organize a class in English and citizenship in¬ 
struction whenever such a class is requested by the pe¬ 
tition of ten residents of foreign birth over sixteen years 
of age. This commission is charged with the duty of 
seeing “that public school officials are informed of the 
provisions of this resolution/ 7 and “that the foreigner 
is made aware of this opportunity/ 7 

A board of control, consisting of five persons appointed 
by the governor, supervises military training in the public 

64 S. L. 1910, Oh. 235 
65 Act approved Feb. 23, 1917 
66 S. L. 1917, Oh. 155 
67 S. L. 1919, Ch. 235 
*S-. L. 1919, Oh. 315. 



Education 


483 


high schools which have established it; and arranges for 
at least one annual state contest among such schools. 61 ' 

One of the weakest spots in Oklahoma's educational 
system is the lack of adequate kindergarten facilities. 
The law 70 provides that kindergartens for children from 
four to six years old may be established in connection 
with the public schools, in any town, city, or school 
district having a population of twenty-five hundred or 
more; and also requires that the state normal schools 
shall make provision for the training of kindergarten 
teachers. However, it is the exceptional town, city or 
district which establishes kindergartens. This is due in 
part to the scarcity of money which impedes the pro¬ 
gress of the schools in many districts, but it is also due 
to general indifference toward the education of very 
young children. 


SEPARATE SCHOOLS 

Education of white and negro children in the same 
schools, whether public or private, is prohibited under 
heavy penalties. Separate schools are maintained by the 
county under the management of the county superin¬ 
tendent of public instruction (except in independent 
districts, where the district board is in charge) for “the 
race having the fewest number of children in said school 
district: provided, that the county superintendent of 
public instruction * * * shall have authority to designate 
whht school or schools * * * shall be the separate school 
and which class of children, either white or colored, shall 
have the privilege of attending such separate school or 
schools. * * * Members of the district school board shall 
be of the same race as the children who are entitled 

6 \s. L. 1917, Ch. 246 

70 S. L. 1913, Ch. 219, Art. XII 



484 


Government of Oklahoma 


to attend the school of the district, not the separate 
school.” 71 When there are fewer than ten children of 
either race in a given school district they are transfer¬ 
red to a “school of their own color” in a neighboring dis¬ 
trict, unless this means that they must travel more than 
two and one-half miles. 72 

Although the law provides for “impartial facilities 
for both races,” 73 it is claimed that the schools for ne¬ 
groes are not equal in equipment or teaching staff to 
the schools for whites. “In almost every city the excuse 
given by the superintendent for the poor condition of 
the negro schools is that under the present law govern¬ 
ing financing, it is impossible to provide equally good 
schools for the two races.” 74 

In the latest report of the state superintendent of public 
instruction is found the following description of the condi¬ 
tion of the separate schools: 

“I believe that the Legislature has earnestly endeav¬ 
ored to meet this situation; but it remains a solemn 
fact that the schools for negroes are not as good in 
many districts as they are for the whites. It is also a fact 
that many negro districts are better provided for than 
a very large number of the white school districts, and 
any plan which may be devised to help the separate 
schools must be broad enough in its scope to help all 
the schools. 

“The supervision of the separate schools is entirely 
inadequate. In counties having both races, the schools 
for whites are so numerous that the county superin¬ 
tendent cannot give them close supervision. The county 

7 Tbid. Art. XV. Secs. 1-3 

72 Ibid. Art. XV, Sec. 10 

73 Ibid. Art. XV, Sec. 1 

74 0hild Welfare in Oklahoma, p. 98 



Education 


485 


superintendents should be allowed a special supervisor 
to look after the interests of the separate schools in 
all counties having a considerable number of such 
schools. 

“During the past year we secured aid from the 
Jeannes Fund to be used in employing a colored indus¬ 
trial teacher to work under the direction of the county 
superintendent of Logan county. As a result, the schools 
for negroes in Logan county were closely supervised 
during the last year. Arrangements have been made 
for the county to pay one-half of the salary of this 
supervising industrial teacher during the current year, 
the other half being paid by the Jeannes Fund. Excel¬ 
lent results have been secured from this closer super¬ 
vision in Logan County. 

“The county superintendents need assistance in dis¬ 
charging their supervisory duties. This need is especially 
great in those counties having both white and negro 
populations because of the larger number of schools in 
the same area and the greater amount of administrative 
work incident to two distinct school systems. 

“Arrangements have been made to secure aid from 
the Julius Rosenwald Fund for building negro school 
houses in the South during the current year. This aid 
is needed very much in this state as the separate school 
houses are built by the counties, usually from funds that 
would otherwise be applied to the maintenance of the 
schools.” 75 

A law of 1921, authorizing the county excise board 
to levy up to two mills (in addition to the eight-mill 
levy permitted for current expenses) for the support of 
separate schools, county high schools, and common 


T *Eighfn Biennial Report, 1920, p. 41 



486 


Government of Oklahoma 


schools, will undoubtedly do much to relieve the pres¬ 
ent unfortunate situation of the separate schools. 76 

A very interesting and important decision has recent¬ 
ly been rendered by the supreme court of Oklahoma, 
in a case which tested the application of this law. 77 The 
excise board of Logan County reduced the estimate 
made by the Board of Education of the city of Guthrie 
for the support of the separate schools, to an amount 
which the board of education declared to be “inade¬ 
quate and insufficient.” A mandamus was therefore 
sought against the excise board, to compel it to raise 
the estimate and increase the levy in order that the 
separate schools of Guthrie might be maintained on an 
equal basis with the white schools. The supreme court 
dismissed the appeal because the tax-rolls had been 
made up and most of the taxes paid for the year; and 
a “writ of mandamus will not lie where its issuance 
would work injustice or introduce confusion and dis¬ 
order/' But the court made it very clear that it is “the 
duty of the county excise boards in the respective coun¬ 
ties where separate schools are maintained, to annually 
levy a tax roll on all taxable property in such counties suf¬ 
ficient to maintain the separate schools, and in all inde¬ 
pendent districts where separate schools for white and 
colored children are maintained, it is the duty of the coun¬ 
ty excise board to make a sufficient levy to pay the cost 
of maintaining such separate schools, purchasing sites 
and erecting buildings in accordance with the budget 
submitted to the excise board by the board of education 
of such independent districts.'’ 78 

76 S. L. 1921, Oh. 48 

77 Board of Education of City of Guthrie v. Excise Board of 
Logan County et al., 206 Pae. 517. 

78 Ibid. Syllabus by the court. 



Education 


487 


The case is of sufficient importance to warrant furth¬ 
er quotations: 

“Section 9, Art. X, Williams’ Constitution imposes a 
limitation of 8 mills for county current expenses upon 
the taxing power of the state, which is the Legislature 
(Schaff v. Borum, County Treasurer, 82 Okla. 284, 200 
Pac. 191) for county purposes. But any county may 
levy not exceeding 2 mills additional for a county high 
school and aid to common schools of the county under 
the proviso to Section 9, Article X. 

“Our conclusion is that the additional 2 mills .... 
is in addition to the 8 mills authorized to be leyied for 
county purposes. That is, a county may levy, provided 
the Legislature has not placed other statutory limita¬ 
tion upon it, 8 mills for all purposes and if the 8 mills 
levy is insufficient to take care of the county’s current 
expenses and have the separate schools of the county 
properly maintained, an additional 2 mills may be lev¬ 
ied in aid of a county high school and of the common 
schools of the county, of which not over one mill may be 
used for high school purposes. But, if there be no high 
school in the county, there is no reason why the entire 
additional levy of 2 mills may not be used in aid of 
the common schools, including separate schools.” 

In construing S. L. 1921, Ch. 48, the court says: 

“* * * but it was never intended or contemplated 

by the Legislature that an appropriation by county ex¬ 
cise boards for the maintenance of separate schools 
could never in any event exceed a levy of 2 mills. A 
consideration of the whole act of the Legislature ap¬ 
proved March 81, 1921, supra, makes it clear that it 
was the intention of the Legislature that a sufficient 
levy must be made for the maintenance of common 
schools in every county where the same are maintained, 


488 


Government op Oklahoma 


even though such appropriations require a levy exceed¬ 
ing all other statutory limitations * * * as long as the 
levy is within the constitutional limitations.” 

Undoubtedly the law in question, as interpreted in 
this case, will do much to strengthen the separate 
schools of Oklahoma. 


TEXT BOOKS 

A law 19 of 1923 establishes a state text book fund, for 
the purchase of text books in all basic subjects from the 
first to the eighth grades inclusive, for the free use of pu¬ 
pils in the public schools. The state treasurer is author¬ 
ized to pay into this fund the net amount of money col¬ 
lected by the state insurance commissioner from all foreign 
insurance companies doing business in the state, except 
foreign fire insurance companies. For the fiscal year end¬ 
ing June 30th, 1923, $600,000 is appropriated from the 
fund for the purchase of text-books, and for the next year 
$350,000. 

All textbooks and school apparatus for the use of 
the public schools of Oklahoma, to and including the 
twelfth grade, are selected by a textbook commission. 
The governor is ex-officio chairman of this commission, 
and the state superintendent of public instruction is 
ex-officio secretary. The other five members, who are 
appointed by the governor, must be “persons of recog¬ 
nized ability, residents of the state, and a majority of 
the textbook commission shall be active as teachers or 
superintendents in the public schools of Oklahoma. 80 
All members are required, “in addition to the oath pre¬ 
scribed by the constitution, to take an oath ... to 

79 S. L. 1923, Cli. 175. 

“S. L. 1019, Oh. 12. amending R. L. 1910, Secs. 7707, 7708, and 

7730 



Education 


489 


faithfully discharge all the duties imposed upon them 
as members of the textbook commission, and that they 
have no interest, directly or indirectly in any contract 
that may be made under this article and will receive no 
personal benefit therefrom, that they will examine all 
books submitted carefully and faithfully/’ 81 

Elaborate legal provisions are made for the procedure 
by which bids are received and specimen books exam¬ 
ined. The books which are finally adopted must be 
used by all public schools in the state for a period of 
five years, when another series of adoptions is made. 
“Books by Oklahoma- authors shall have preference, 
merit and price being equal.” 82 

The advantages of this plan are, that it enables child¬ 
ren removing from one part of the state to another dur¬ 
ing the school year to carry on the work of their grade 
with the textbooks to which they have become accus¬ 
tomed ; and that it saves money both for this reason and 
for the reason that in the course of five years several 
children in one family may use the same book. 

Its disadvantages are so great, however, that it may 
well be questioned whether they do not heavily out¬ 
weigh these advantages. They include, first, a false and 
artificial uniformity throughout a state which includes 
the most diversified elements and conditions of people. 
While conceivably certain basic texts should be uniform, 
in order that all children may be assured correct train¬ 
ing in fundamentals, there should be a wide freedom 
in the choice of books in such fields as general science, 
required readings in English, and other subjects whose 
emphasis should vary with local conditions. Second, the 
present system makes a careful choice of books impos- 


S1 lbid. 

82 R. L. mo. See. 7714 



490 


Government of Oklahoma 


sible. Only a part of the members of the commission are 
schoolmen, and even these cannot be experts in every 
branch that is taught in the public schools. Even if they 
were all highly qualified judges, they could not possibly 
make a careful examination of all the books submitted 
for “adoption.” The selections, then, must be more or 
less inexpert and haphazard. Again, the clause giving 
preference to Oklahoma authors is objectionable, as in¬ 
troducing personal and local considerations. Even the 
provision that the books of these authors must be equal 
in merit and price to others submitted, cannot do away 
with the “pork-barrel” idea underlying this feature of 
the law. Finally, the textbook commission is liable to 
the attacks of sinister influences. Without in the least 
suggesting that any member of such a commission has 
ever yielded to such influences, it is necessary to point 
out that since the “adoption” of a book for a five-year 
period is extremely profitable to a publishing house, the 
agents of such a house must be of almost superhuman 
virtue if they refrain from hinting that a division of' 
profits in the shape of a “rake-off” might be forthcom¬ 
ing to the commissioner whose influence secures the 
adoption of the book in question. The fact that such a 
situation is possible, even though its possibilities are 
never acted upon, should be a sufficient reason for radi¬ 
cal changes in the present law governing the choice of 
textbooks for use in the public schools. 

FINANCING THE PUBLIC SCHOOLS 

The state of Oklahoma has a permanent fund for the 
support of the common schools. When Oklahoma Terri¬ 
tory was created, and when other lands were opened 
to settlement, Congress set aside certain tracts of land 
for the benefit of the public schools. Other lands were 


Education 


491 


added by the Enabling Act, and an appropriation of 
$5,000,000 was made by Congress in lieu of school lands 
in the Indian Territory. Some of the school lands in 
Oklahoma have been sold, and their purchase price has 
been added to the $5,000,000. The money in this com¬ 
mon school fund is lent upon farm mortgages, and the 
school lands are leased. The interest and the rent thus 
coming in, together with the proceeds of the state levy 
for school purposes, (one-fourth of one mill) are ap¬ 
portioned on a per capita basis to all school districts 
in the state. The per capita amount (based on the 
school census) distributed during the year 1920 was 
$2.87. 83 

Both district and county may supplement the state 
apportionment by levies. In Art. X, Sec. 9, of the con¬ 
stitution of Oklahoma is found the following provision: 
“Any county may levy not exceeding two mills addi¬ 
tional for county high school and aid to the common 
schools of the county; not over one mill of which shall 
be for such high school, and the aid of said common 
schools shall be apportioned as provided by law.” 

A law of 1921 84 provides that the county may levy, 
in addition to its levy for current expenses, not more 
than two mills for the support of common schools, coun¬ 
ty high schools, and separate schools. We have already 
discussed the significance of this law. 

The constitution of Oklahoma provides (Art. X, Sec. 
9) that the school district levy shall not be more than 5 
mills on the dollar for the support of the common 
schools; except when the voters of any district increase 
this rate at a special election “by an amount not to 
exceed ten mills on the dollar valuation.” Additional 


S3 Eighth Biennial Report. State Snpt. of Pub!if Instruction. 1920. 
M S. L. 1921, Ch. 48 



492 


Government of Oklahoma 


levies are made to pay the interest on outstanding 
bonds and to provide a sinking fund for the payment of 
such bonds at maturity. Each district votes bonds 
for the construction and equipment of buildings; except 
in a few cases where the buildings are rented, or built on 
the annual rental plan. 85 

The 1919 session of the Oklahoma legislature appro¬ 
priated $100,000 for each of the two school years end¬ 
ing respectively on June 30, 1920, and June 30, 1921, 
to be used for aiding weak rural school districts which 
had already levied 15 mills. 86 The 1921 session of the 
Legislature raised the sum appropriated for the second 
year to $185,000. 8 ‘ At this session an appropriation was 
made of $35,000, to be distributed through county sup¬ 
erintendents for the aid of separate schools, “in any 
amount not exceeding two hundred fifty dollars ($250.) 
for any one such separate school or room for colored 
children.” 88 

A special fund, described in Chapter X, is avail¬ 
able to aid consolidated and union graded school dis¬ 
tricts in the construction of buildings. From this fund 
a sum not to exceed one-half the cost of the building, 
and not in any case to be greater than $2,500, may be 
appropriated for any such district under certain con¬ 
ditions fixed by law. 89 A special tax levy of one-half 
mill, to be perpetual until discontinued by an election, 
may be voted for the maintenance of playgrounds un¬ 
der the auspices of the boards of education in independ¬ 
ent school districts and cities of the first class. 90 

85 S. L. 1933, Ch. 219, Art. V, Sec. 27 

86 S. L. 1919, Oh. 62 

S7 S. L. 1921, Ch. 16 

88 S. L. 1921, Cxi. 36 

"S. L. 1919, Ch. 185 

B0 S. L. 1915, Oh. 35, and S. L. 1917, Ch. 242 



Education 


493 


Some districts derive small sums from tuition fees, 
charges for pupils transferred from other districts, and 
various miscellaneous sources. The Smith-Hughes fund 
for vocational education, as well as the Federal Indian 
fund, yield small sums which are used for the special 
purposes to further which these funds were established. 

The gross production tax is a considerable source of 
income in certain counties. According to the present 
law, 91 one-sixth of this tax (5 mills) goes to the aid of 
“the common schools of the county from whence the oil 
or gas and other minerals is produced.” The result of 
such a system of distribution is, that in some counties 
the amount of money available for school purposes is so 
great as to be an actual encouragement to extrava¬ 
gance; while in other counties, in which there is little 
mineral wealth, all the sources of income available for 
the schools will not suffice to place them on a basis of 
real efficiency. There seems to be no good reason why 
the portion of the gross production tax which now goes 
to the county in which this tax is collected should not 
be placed in the common school fund of the state, and 
distributed like the other moneys which come into the 
fund. A change in the law governing the distribution 
of this tax could easily bring about this more equitable 
arrangement. 

A 'bill passed by the 1923 legislature (S. L., Ch. 179) 
provided that when any school district in which lead or 
zinc is mined from tax-exempt Indian lands shall have 
made its maximum legal levy for school purposes, and 
shall have found the money from this and all other sources 
inadequate to its needs, it may receive from the gross pro¬ 
duction tax derived from the county in which it is located 


sl S. L. 1916, Ch. 39, Sec. 5 



494 


Government of Oklahoma 


a sum equal to the difference between its resources and its 
estimated needs, which needs shall not be in excess of $35 
per child of school age enrolled in the district. / 

For some years those interested in the welfare of the 
school system have worked to secure two changes in 
the state constitution which would make more money 
available for the support of the schools. The first of 
these is the “vitalization” of Section 12A of Article X of 
the constitution, which provides : 92 

“All taxes collected for the maintenance of the com¬ 
mon schools of this State, and which are levied upon the 
property of any railroad company, pipe line company, 
telegraph company, or upon the property of any pub¬ 
lic service corporation which operates in more than one 
county in this State, shall be paid into the Common 
School Fund and distributed as are other common 
school funds of this State.” 

The second is a constitutional amendment 93 which would 
permit the school district to levy fifteen mills for the sup¬ 
port of the schools, with an additional levy up to ten mills 
if this is authorized by the voters of such district at an 
election. 94 

It seems imperative that either these methods or some 
others be employed to relieve the shortage of money 
which is now a serious handicap to the efficient func¬ 
tioning of the public schools in many districts. 

The legislature of 1923 proposed an amendment to the 
constitution (S. L., Ch. 288) providing for a special state 
levy on an advalorem basis, sufficient to provide for a 
fund of at least $15 per annum for each child in average 

Sg© Chapter I for further discussion of this amendment. 

93 See Chapter IX. 

94 S. L. 1921, Ch. 128. This amendment was defeated in August. 



Education 


495 


daily attendance, such levy to be made by the state board 
of equalization. From the fund thus created, the state 
treasurer, upon the recommendation of the state superin¬ 
tendent, would apportion this money to the various coun¬ 
ties in accordance with attendance. 

The legislature also made liberal grants of state aid to 
schools. (See chapter 3, 5, 164, of Session Laws, 1923.) 

TEACHERS 

Tne training of teachers is accomplished by means of 
six normal schools, special teachers’ courses in many 
high schools, and courses in the colleges and universi¬ 
ties designed to meet the needs of students who intend 
to teach. Teachers’ training courses and normal insti¬ 
tutes are also established, to be held yearly in each 
county; or in one of two or more adjoining counties 
which desire to unite for this purpose. Attendance of 
all teachers is required. 

In each county a board of county examiners, consist¬ 
ing of the county superintendent of public instruction as 
ex-officio chairman, and 'Two competent persons, hold¬ 
ers of first grade certificates or diplomas from some 
state university, normal school or agricultural college,” 9 " 
appointed bj him, give examinations four times a year 
to those desiring to receive teachers’ certificates. These 
certificates are of three grades; and the law lays down 
requirements for obtaining a certificate of each grade. 

Provisions for the issuing of temporary certificates, 
for the honoring of unexpired certificates in counties 
other than that in which they were issued, for the re¬ 
newal of certificates, and for the issuing and renewal 

06 S. L. 1913, Ch. 219, Art. XIV. 



496 


Government of Oklahoma 


of state certificates, are embodied in the law. No cer- 
tificates are issued except to persons who have received 
a specified amount of academic or professional train¬ 
ing. 97 Students who have completed a full course in a 
state normal school, or an equivalent course in an Okla¬ 
homa college, receive state life certificates valid in any 
school in the state. 98 

SPECIAL SCHOOLS AND INSTITUTIONS OF HIGHER EDUCATION 

Space will not permit a description of the various 
special schools, normal schools, colleges and universities 
which complete the educational system of Oklahoma. A 
mere mention of these schools, together with certain 
commissions and boards whose functions directly con¬ 
cern education, must suffice. 

The State University at Norman and the University 
Hospital at Oklahoma City are controlled by a special 
board of regents. Other institutions managed by separ¬ 
ate boards of regents are: the Oklahoma College for 
Women at Chickasha, the Oklahoma Military Academy 
at Claremore, the Oklahoma State Business Academy at 
Tonkawa, the School of Mines and Metallurgy at Wil- 
burton, the Miami School of Mines at Miami, and the 
Colored Agricultural and Normal University at Langs¬ 
ton. The State Board of Education supervises the six 
normal schools, located respectively at Edmond, Alva, 
Weatherford, Ada, Tahlequah, and Durant; as well as 
the School for the Blind at Muskogee and the School for 
the Deaf at Sulphur. 

The State Board of Agriculure is placed in charge of 
the Agricultural and Mechanical College at Stillwater, 


"Ibid. 

97 S. L. 1915, Ch. 282 
"S. L. 1917. Ch. 241 



Education 


497 


the Cameron State School of Agriculture at Lawton, the 
Conner State School of Agriculture at Warner, the 
Murray State School of Agriculture at Tishomingo, and 
the Panhandle School of Agriculture at Goodwell. A 
Board of Managers controls the State Training School 
for White Boys at Pauls Valley, the State Industrial 
School for White Girls at Tecumseh, the East Oklahoma 
State Home for White Children at Pryor, the West 
Oklahoma State Home for White Children at Helena, 
the State Training School for Colored Boys at McAlester, 
the State Training School for Colored Girls at Taft, 
and the Deaf, Blind and Orphans’ Home for Colored 
Children at Taft. 

The State Board of Affairs supervises the Institution 
for the Feehle Minded at Enid, the East Oklahoma 
Hospital for the Insane at Vinita, the State Hospital 
for the Insane at Nlorman, and the West Oklahoma 
Hospital for the Insane at Supply. 

The State Historical Society and the Oklahoma Li¬ 
brary Commission do valuable educational work whose 
nature is indicated by their names, but which cannot 
be described here for lack of space. Mention should 
be made of the following denominational schools, each 
of which has its own board of trustees or managers: 
Phillips University at East Enid, the University of Tulsa, 
Oklahoma Baptist University at Shawnee, and Okla¬ 
homa City College at Oklahoma City. 

SPECIAL COMMISSIONS 

The 1919 Legislature established a Childrens’ Code 
Commission of “three competent persons” to be ap¬ 
pointed by the governor. This commission was to have 
headquarters at the state capitol. Its duties were to 
“revise, consolidate and suggest amendments to the 
statute laws of the State of Oklahoma which pertain 


498 


Government op Oklahoma 


to children;” to “unify the present laws pertaining to 
illegitimate, defective, neglected, dependent and delin¬ 
quent children; and to their treatment, care, mainten¬ 
ance, custody, control, protection and reformation;” 
and to “suggest such amendments and additions as to 
them may seem best calculated to bring the statute 
laws of this state into harmony with the best thought 
on this subject. 99 ” The commission was to present its 
report to the governor by July 1, 1920, and the gov¬ 
ernor was to transmit this report to the next session of 
the legislature. No mention of such a report is found 
in the governor’s message to the 1921 legislature, nor was 
any action taken by this legislature in regard to adopting 
a children’s code. 

educational survey commission 

A law of 1921 100 created an educational survey 
commission of five members to be appointed by the 
governor, of whom one shall be the state superintend¬ 
ent of public instruction, who shall act as chairman. 
This commission, the members of which shall serve 
without pay, except reimbursement for expenses, shall 
employ paid experts “chosen from recognized authori¬ 
ties without the state * * * and as many as possible 
from the National Bureau of Education 101 .” Members of 
the commission and experts or assistants “shall have 
the production of papers and records and are hereby 
enpowered to administer oaths.” They “may apply 
to the district courts of the State to compel obedience 
and testimony, and the district courts are hereby em¬ 
powered to enforce obedience to such process. 102 ” 

"S. L. 1919, Oh. 58 
100 S. L. 1921, Oh. 194 
101 Ibid. 

102 Ibid. 



Education 


499 


The commission, with this expert assistance, is au¬ 
thorized “to make a comprehensive survey of the pub¬ 
lic educational system of Oklahoma, including all 
schools and educational institutions supported in whole 
or in part from public funds, to determine the effici¬ 
ency of the same and report its findings to the gov¬ 
ernor” on or before Sept. 1, 1922. 103 

William T. Bawden, Assistant United States Commis¬ 
sioner of Education, was secured as director of the 
commission. A large committee of Oklahoma educat¬ 
ors, with Dr. Phelan of the University of Oklahoma 
serving as chairman, have been co-operating with the 
members of the survey commission in many ways, in¬ 
cluding the giving of tests and the taking of educa¬ 
tional measurements. There is no doubt that the re¬ 
port of the commission will afford the next legislature 
a valuable scientific basis for revision of the school 
laws. 103a 

SUMMARY AND CONCLUSIONS 

In judging the educational system of Oklahoma, ah 
lowance must be made for certain special conditions. 
The state is very young, and its entire history since the 
first authorized settlements by white men is exceeding¬ 
ly brief. Its population of 2,029,000 persons is scat¬ 
tered over an area of 70,000 square miles. It has only 
two cities with a population of more than 50,000 and 
only one other city of more than 25,000. Agriculture 
in various forms is its predominant occupation. In 
many parts of the state road building has made little 
progress. All these hindering factors should incline 

103 Ibid. 

J03 aAfter this chapter was written, the report of the commission was 
published and presented to the 1923 legislature, which paid very little 
attention to its recommendations. 



500 


Government op Oklahoma 


the critic to take a charitable view and to “point with 
pride” to a state educational system which already in¬ 
cludes a great university, a large and efficient agricul¬ 
tural and mechanical college, six normal schools, and 
several other institutions of higher learning, as well 
as a system of common schools employing about 16,000 
teachers 10 '. 

Our achievements, however, must not blind us to our 
faults and to possibilities of progress. It is necessary 
to note certain weak points in the system. 

The weakest point of all is, perhaps, the fact that, 
strictly speaking, there is no unified system of public 
education in Oklahoma. Each school district is allowed 
to fix the length of the term during which its own 
schools shall be conducted, provided that this term 
shall not be less than three months. The law should be 
changed to provide for a school term throughout the 
state of not less than thirty-two weeks, and preferably 
a term of thirty-six weeks. Only by means of a uniform 
term can children in all parts of the state receive sys¬ 
tematic educational advantages. 

Keeping the schools open, however, will accomplish 
nothing unless persons of school age are compelled to at¬ 
tend them. The present law, which permits absence 
from school for one-third of the term, destroys ail cer¬ 
tainty that the children of Oklahoma will grow up into 
educated citizens; or, in other words, it destroys the 
true purpose of the public schools. W^e have already 
mentioned its evil effects in some detail; so it will suf¬ 
fice here to repeat that the compulsory attendance law 
should be changed to require the constant presence at 
school of all children from six to sixteen who have not 

104 Eightli Biennial Report of State Superintendent of Public In¬ 
struction. page 6. giving figures for 1920. 



Education 


501 


completed the eighth grade, and to impose heavy pen¬ 
alties upon parents or guardians who fail to see that 
their children attend school regularly. Careful and 
adequate provision should be made for the enforcement 
of this law. 

It is open to question whether a uniform system of 
textbooks is desirable throughout the state; but if it is 
so considered, certain changes should be made in the 
law governing the textbook commission. There is no 
reason why the governor of the state should be a mem¬ 
ber of this commission, nor why all its members, instead 
of a mere majority, should not be persons engaged in 
teaching or administrative work in the public schools. 
It is absolutely essential that political influence be elim¬ 
inated from a commission of this type, and that it be 
Composed solely of experts. 

A steady and widespread effort should be made to 
popularize the idea of kindergarten education. Few 
parents understand the almost immeasurable influence 
of the earliest years upon the later development of the 
child; but they should toe informed on this point. The 
educator has recently learned much from the psychoan¬ 
alyst to reinforce his rule-of-thumb verdict that, “As the 
twig is bent the tree's inclined”; and he knows that the 
consequences of neglect, or of wrong influences, during 
the impressionable period of very early childhood, are 
not easily overcome later. Oklahoma's educational 
system will not be adequate to meet her needs, nor in 
line with the best modern knowledge, until it includes 
kindergarten training as the rule rather than the ex¬ 
ception. 

It is evident that before most of these changes can be 
brought about, more money must be made available for 
the support of the public schools; and this money must 
be distributed throughout the state in such a way as to 


502 


Government of Oklahoma 


place the various schools on a far more nearly equal 
basis than the present one. One possible remedy to the 
inequalities which now exist would be the levying of all 
school taxes by the state, the distribution of such taxes 
on a per capita basis, and their administration by county 
boards of education. At present the highest possible 
levy in some school districts, particularly agricultural 
districts, will not suffice to keep the schools open for 
more than a few months; while in districts where the 
real property of great industrial, mining, or public ser¬ 
vice establishments is located, a small millage levy will 
support the schools handsomely for long terms. Some 
districts, in counties where the gross production tax is 
large, raise no school levy at all. Since education is 
recognized as a function of the state, all children with¬ 
in the state should have equal educational opportunities, 
or, at least, should be given school facilities measuring 
up to a certain standard; and all property within each 
class should be taxed uniformly throughout the state to 
provide these opportunities. Counties or districts which 
might desire to provide exceptional facilities could still 
be permitted to do so. The chief objection to this plan 
is that it is new; and those who oppose it have much to 
say about the beauties of local autonomy. Education, 
however, is no more a matter for the locality to handle 
than for the private individual. The state should see 
to it that every one of its young citizens is properly edu¬ 
cated. 

Various other means may be employed to improve the 
financial situation of the public schools. Among these 
may be mentioned: 

A change in the method of distributing the gross pro¬ 
duction tax, the levying of other special taxes for the 
benefit of the public school fund, the financial manage¬ 
ment of schools by the county rather than the district, 


Education 


503 


except in the case of cities, and the passing of the pro¬ 
posed constitutional amendments previously discussed. 

That Oklahoma can afford to spend more money on 
her public schools, and that she must do so if she is to 
hold a place in the ranks of progressive states, is evi¬ 
denced by two significant and rather startling facts. 
First, Oklahoma ranks fourteenth among the states in 
per capita wealth. 105 Second, her educational system, 
when compared with the educational systems of the 
other states, the District of Columbia, the Panama Canal 
Zone, Hawaii, and Porto Rico, ranks thirty-sixth. 106 
That a larger portion of the state's great wealth should 
be employed for the betterment of the schools, even 
though this means the addition of a few mills to the 
tax levies in some parts of the state, hardly needs to be 
argued in the face of these facts. 

- ' ""Tiff 

10B The Financial System of the State of Oklahoma, F. F. Blachly, 
1019; Ch. 1. Schedule 1. 

106 An Index Number for State School Systems. Russell Sage 
Foundation, 1920; p. 45 et al. 



CHAPTER XVIII. 


THE CARE OF SPECIAL CLASSES. 


One of the problems of the modern state is the care 
of those individuals who, for various reasons, either 
cannot be allowed complete freedom of action with¬ 
out danger to society, or are unable to care properly 
for themselves and cannot be provided for adequately 
by their relatives. It is the purpose of this chapter to 
describe the governmental machinery employed by 
Oklahoma in dealing with this problem. This will 
be done, by a survey of the agencies maintained by 
the state for dealing with each class, followed by a 
discussion of the general supervisory power vested in 
the commissioner of charities and corrections. The 
constitutional basis for this state activity is found in 
Article XXI of the Oklahoma constitution, which reads: 

Educational, reformatory and penal institutions and 
those for the benefit of the insane, blind, deaf and 
mute, and such other institutions as the public good 
may require, shall be established and maintained b^ 
the State in such manner as may be prescribed by law.” 

Provision for the mentally defective is made through 
four state institutions: the hospitals for the insane at 
Norman, Vinita and Supply; and the Institution for 
the Feeble Minded at Enid. The legislature in 1917 
enacted a comprehensive statute, the “Lunacy Law” 
dealing with the care of the insane. Under its 
provisions, the three hospitals above mentioned were 
assign ed to the control of the state board of public 


’S L. 1917, Oh. 174: Bunn Supp. 1918. Secs. 4575a-4575zl9 
board ° f thP »»<* P^rs of this 


(504) 



Care of Special Classes 


505 


affairs. 2 The board manages the property and fi¬ 
nancial affairs of the institutions, employs superin¬ 
tendents and other employees, and exercises a general 
inspecting and supervisory power over them. Each 
hospital is locally managed by a medical superintend¬ 
ent who serves as its chief executive officer. "The 
board of affairs, together with the medical superin¬ 
tendents and the state commissioner of health, are 
required to divide the state into hospital districts as 
nearly equal in population as possible. Patients are 
to be sent to the hospital located in the district in 
which they reside, unless that hospital does not have 
sufficient facilities to take care of them, in which case 
they may be sent elsewhere. An inmate of one of the 
other hospitals, “showing unmistakable dangerous or 
homicidal tendencies rendering his or her presence a 
source of danger to others” is to be removed to the hos¬ 
pital at Norman. The procedure relating to the com¬ 
mitment of lunatics to these institutions is treated in 
the chapter on local government. 3 4 

The lunacy law expressly excludes imbeciles and 
idiots from its operation. Such persons are cared for 
by the Institution for the Feeble Minded, located at 
Enid. 5 The control of this institution ds vested in the 
state board of affairs. 6 It serves two purposes. It is 
a school for feeble minded children. Such children 
may be admitted upon the application of parents or 
others having them in charge, or upon the application 
of certain public officials. 7 It is also an asylum for 
feeble minded adults whose relatives are unable or un- 

3 Bunn Supp. 1918, Sec. 4575g. S. L. 1917, Oh. 174, Sec. 7. 

4 See p. - 

5 R. L. 1910, Secs. 7064-7086 

fS. L. 1919, Ch. 57 

7 R. L. 1910, Sec. 7072 




506 


Government of Oklahoma 


willing to care for them properly. In admitting adults 
the preference is to be given to females between the 
ages of sixteen and forty-five. S * * 8 

For the care and restraint of mature criminals, the 
state maintains a penitentiary at McAlester and a re¬ 
formatory at Granite, both under the control of the 
board of public affairs. 9 The reformatory is designed to 
serve as a means of segregating young offenders from 
older and more hardened criminals. At the discre¬ 
tion of the board of affairs, persons between the ages 
of sixteen and twenty-five, sentenced to imprsonment 
for crime, may be confined either in the penitentiary or 
in the reformatory. If the term of imprisonment im¬ 
posed on such offenders is less than five years, the trial 
court may, at its discretion, direct that the imprison¬ 
ment shall be at Granite. 

For still younger offenders, four state training 
schools are maintained; one for white boys at Pauls 
Valley, one for negro boys at McAlester, one for white 
girls at Tecumseh and one for negro girls at Taft. De¬ 
linquent children 10 may be committed to these institutions 
by the county court after a summary hearing and in¬ 
vestigation, which may be held on complaint of any 
person. A jury trial may be had on demand of the 
child or of any person interested in it. u Children be¬ 
tween the ages of ten and sixteen may also be com¬ 
mitted to these schools by the judge of a polic court, 
"county court, district court or any court of record hav¬ 
ing jurisdiction of criminal cases, on conviction of any 

S R. L. 1910, Secs. 7081-7086 

9 R. L. 1910, Secs. 7117, 7126; S. L. 1915, Oh. 57; S L 1917 

Ch. 211, S. L. 1919, Oh. 27 

10 See definition of delinquency, R. L. 1910, Sec 4412 

"R. L. 1910, Secs. 4413-4426 



Care of Special Classes 


507 


offense against the laws of the state. 12 Children com¬ 
mitted to these institutions remain there until they be¬ 
come of age, unless “sooner reformed.” 13 By an act of 
1919, 14 these four training schools, together with the 
state homes for children, were placed in charge of a 
board of managers, consisting of five members, ap¬ 
pointed by the governor and serving during his plea¬ 
sure. They are given the general management and 
supervision of the institutions, with the exception of 
fiscal matters, which remain under the board of pub¬ 
lic affairs, and are directed to maintain such a system 
of education as will make the inmates capable of self- 
support wdien they are dismissed. 15 

The statutes also define what children shall be re¬ 
garded as “dependent and neglected,” and provide for 
their commitment, under substantially the same proce¬ 
dure as that provided for delinquent children, to homes 
maintained for them by the state, or to the care of pri¬ 
vate families. 3 * The children committed to the state 
homes are to be placed in family homes as soon as pos¬ 
sible, but are to be retained in the state homes as long 
as their best interests require. They are to be dis¬ 
charged on attaining the age of eighteen, and may be 
discharged, if capable of self-support, at sixteen. 
Children who prove vicious and incorrigible, or physi¬ 
cally or mentally incapable, are to be returned to the 
county from which they were committed, as these 

12 R. L. 1910, Sec. 7112 

“R. L. 1910, Sec. 7093, S. L. 1917, Oh. 255 

14 S. L. 1919, Ch. 188 

15 For general laws establishing and relating to these in¬ 
stitutions see the following: School for white boys, R. L. 1910, Sec. 
7087-711G: School for white girls, S. L. 1917, Oh. 255; S. L. 1919. Ch. 
291; School for negro boys. S. L. 1915. Oh. 252; S. L. 1917, Oh. 69; S. 
L. 1919, Oh. 68; School for negro girls, S. L. 1917, Ch. 115. 

1€ R. L. 1910, Secs. 4412-4426 



508 


Government of Oklahoma 


homes are neither reformatories nor hospitals. For 
white children, homes are located at Helena and Pryor, 
taking children from the old Oklahoma and the Indian 
Territory sides of the state respectively. 17 The home 
for negro children is at Taft, and is known as the Insti¬ 
tute for the Colored Deaf, Blind and Orphans. 18 As its 
name indicates, it receives blind and deaf negro child¬ 
ren, as well as those who are “dependent and neg¬ 
lected.” All of these schools are under the control of 
the board of managers mentioned above. 

The state maintains special schools for the training 
of white children who are blind or deaf. The object 
of both schools is to give to these students such special 
training as will enable them to become self-supporting 
and useful citizens. 19 The School for the Deaf is lo¬ 
cated at Sulphur, and is under the control of a board 
consisting of the state superintendent of public in¬ 
struction, and three trustees appointed by the governor 
for a term of three years, one retiring each year. These 
appointments are subject to confirmation by the senate. 20 
The superintendent of the school is appointed by the 
governor, but other employes are chosen by the board 
of trustees with the advice of the superintendent 21 . 
The School for the Blind is located at Muskogee, and 
is under the control of the state board of education. 22 

Special provision for the adult blind was made by the 
legislature in 1919. A board of commissioners for 
the blind, consisting of five members, was established. 

17 R. Jj. 1910, Secs. 6997-7011, S. L. 1917. Oh. 169 

A8 R. L. 1910, Secs. 7014-7018 

39 R. L. 1910, Sec. 6989, S. L. 1913. Oh 37 

^R. L. 1910, Secs. 6986-6991 

a R- L. 1910, Secs. 6991-6992. 

M S. L. 1913, Oh. 37. 

*S. L. 1919, Ch. 221 



Care of Special Classes 


509 


The president of the state association for the blind is ex 
officio a member, and four others are appointed by the 
governor for a term concurrent with his own. The 
board selects from its own membership a president, vice 
president, and secretary. The secretary is ex officio field 
worker for the board, and it is his duty to obtain informa¬ 
tion concerning the adult blind within the state, to find em¬ 
ployment for them and “to perform such other duties in 
connection with the duties of said Board as in the judg¬ 
ment of the Board may tend to make them more ef¬ 
ficient.” The board may also, with the consent of the 
state board of education, introduce industrial training 
in the State School for the Blind. 

The state maintains two homes for veterans of Amer¬ 
ican wars. The Union Soldiers’ Home is located at Okla¬ 
homa City. Its management is vested in a board of 
trustees consisting of five members, appointed by the 
governor with the consent of the senate for a term of 
six years. A portion of the board retires every two 
years. Three trustees must have served in the Union 
army or navy during the Civil War and must be mem¬ 
bers of the Grand Army of the Republic, one must be 
a member of the United Spanish War Veterans Associ¬ 
ation, and one must be a veteran of the war with the 
Central Powers, The home admits, under the regula¬ 
tions prescribed by the Board “aged, dependent and 
honorably discharged United States Soldiers, Sailors 
and Marines, and their dependent wives, widows and 
mothers, and aged and dependent army nurses, and 
dependent honorably discharged members of the Okla¬ 
homa National Guard, who served as long as three years 
as members of said Guard. 24 ” 

The Oklahoma Confederate Home is located at Ard- 

M S. L. 1917, Gh. 271; S. L. 1919, On. 156 



610 


Government of Oklahoma 


more, and its board of trustees consists of seven mem¬ 
bers, appointed by the governor for a term of four 
years. The membership is partially renewed every two 
years. Five members must be ex-Confederate soldiers 
or sailors, one a member of the Sons of Confederate 
Veterans and one a member of the United Daughters 
of the Confederacy 25 . The home is to be used for the 
care of indigent and disabled soldiers and sailors of the 
Confederacy and their wives and widows. 26 The leg¬ 
islature in 1919 attempted to extend the privileges of 
the Home to veterans of the war with Germany but 
there is some doubt as to whether this attempt was 
successful, ov/ing to the wording of the amendment 27 . 

The state also pays pensions to ex-Confederate sol¬ 
diers and sailors and their widows. This pension sys¬ 
tem is administered by a commissioner of pensions 
who must have been a Confederate soldier or sailor, or 
be the descendant of such a veteran. He is appointed 
by the governor for a term concurrent with his own. 
Pensioners must have lived in Oklahoma for twelve 
months prior to applying for a pension, and must not 
own property of the value of two thousand dollars or 
be in receipt of an income of more than three hundred 
dollars per year. Totally disabled pensioners receive 
fifteen dollars per month, others receive ten dollars, 
with the exception of inmates of the Confederate Home 
who receive a monthly pension of five dollars. 28 

A general supervisory power over all state and pri¬ 
vate institutions for the care of special classes is exer¬ 

ts. L. 1911, Ch. 49 

*R. L. 1910, Sec. 7136 

27 “-for the care of indigent and disabled soldiers and sailors 

who enlisted and served in the Army or Navy of the Confederate States 
of America during the Civil War and during the World War in 1917 
and 1918. * * * *” S. L. 1919. Ch. 196. 

"«• L. 1915, Ch. 54: S. L. 1917. Ch. 210; S. L. 1919, Ch. 15 



Care of Special Classes 


511 


cised by the commissioner of charities and corrections. 
This office is created by the constitution. 29 The incum¬ 
bent is elected “in the same manner, at the same time, 
and for the same term” as the governor. The commis¬ 
sioner may be of either sex, must be twenty-five years 
of age and in other respects possess the same qualifica¬ 
tions as are required of the governor. 30 

Under the constitution, it is his power and duty “to 
investigate the entire system of public charities and 
corrections, to examine into the condition and manage¬ 
ment of all prisons, almshouses, reformatories, reform 
and industrial schools, hospitals, infirmaries, dispensaries, 
orphanages, and all public and private retreats and asy¬ 
lums. which derive their support wholly or in part from 
the State, or from any county or municipality within the 
State.” It is the duty of officials to furnish the com¬ 
missioner with such written information as he may de¬ 
mand. He is given power to summon persons to ap¬ 
pear as witnesses and to produce books and papers. 
He may administer oaths and take testimony. The 
legislature may alter, amend or add to his duties or 
grant him additional authority. 31 The legislature has 
made it the duty of the commissioner to investigate all 
public and private correctional and charitable institu¬ 
tions in the state at least once a year, and to conduct 
further investigations on sworn complaint of citizens of 
the state or at the request of the governor. 32 He may 
order the abatement of any unlawful conditions dis- 

“Co-nst. Art. VI, Sec. 27 

30 The only qualifications other than age and sex imposed upon the 
governor are that he must have been for three years prior to his elec¬ 
tion a qualified elector of the state, Const. Art. VI, Sec. 3. 

31 Oonst. Art. VI, Secs. 28-30 

32 R. L. 1910. Secs. 8091-8099 



512 


Government of Oklahoma 


closed by these investigations and may prosecute those 
responsible for them if his orders are not obeyed. 33 

It will be seen that the commissioner of charities 
and corrections has a very wide investigational and su¬ 
pervisory power. In the hands of an energetic com¬ 
missioner, backed by substantial appropriations, it could 
be made a very effective weapon of state control, es¬ 
pecially over local and private institutions. However, 
the work of the department has been greatly handi¬ 
capped by a failure on the part of the legislature to 
provide funds sufficient to maintain an adequate staff 
or to conduct thorough and systematic investigations, 
as contemplated by the law and the constitution. 

As has appeared from the preceding discussion, the 
care of special classes in Oklahoma is divided among 
a great many independent agencies. 

This diffusion of responsibility is very bad from an 
administrative view-point, and any proposed plan of re¬ 
organization of the state government should include a 
concentration of power over these institutions into fewer 
hands than at present. 

83 R. L. 1910, Sec. 8099 



CHAPTER XIX 


LOCAL GOVERNMENT 

The two territories which were united in 1907 to form 
the state of Oklahoma were as unlike in political struc¬ 
ture and experience as can well be imagined. Oklaho¬ 
ma was an “organized” territory, divided for the purpose 
of local government into counties and townships accord¬ 
ing to the custom of the northern and western states. 
Indian Territory, on the other hand, had never been or¬ 
ganized and possessed no subdivisions corresponding to 
counties, if we except the districts which had been 
created for the purpose of recording legal instruments. 
The resulting lack of experience in local government of 
the eastern half of the new state has had an important 
bearing on the financial organization of Oklahoma 
counties, as we shall see later. 

The form of county and township government pre¬ 
viously existing in Oklahoma Territory was adopted, 
with a few changes, by the state of Oklahoma. The leg¬ 
islature of 1913, however, passed a law abolishing town¬ 
ship government and transferring the functions pre¬ 
viously performed by the township to the county govern¬ 
ments. Forty-four counties were expressly exempted 
from the operation of this act and permitted to continue 
under the old method. 1 In August of the same year, the 
people adopted a constitutional amendment which pro¬ 
vided that township government might be abolished in 
any county by popular vote, and that where township 
government was thus abolished, it might be restored in a 
similar manner. 2 Presumably this method of restoring 

’Bunn Supp. Sec. 8206a-8206g, S. L. 1913, Ch. 214 

2 Const. Art. V, Sec. 5a. 


(513) 



514 


Government of Oklahoma 


township government does not apply to those counties in 
which it has been abolished by legislative action. In 
1915 the legislature enacted another law similar -o that 
of 1913, save that only forty-one counties were exempted 
from its provisions. 3 The seventh legislature reduced the 
number of counties in which township government was 
retained to twenty-one. 4 These laws are not in conflict 
with the constitutional amendment previously adopted, 
for the amendment only provides a means by which the 
people of any county may dispense with township gov¬ 
ernment in default of legislative action, and in no way re¬ 
stricts the power of the legislature to abolish the town¬ 
ship organization by general law. 

As in other states, the county in Oklahoma is a creation 
of the state government, and is utterly dependent upon 
that government for existence and for power. Its forma¬ 
tion and alteration are subject to the regulations imposed 
by the constitution and by the law. Its functions and 
powers are limited to those prescribed and delegated to 
it by the state, and the procedure by which these powers 
are to be exercised is rigidly prescribed by law. The 
county cannot incur debt save for the purposes and in the 
manner, authorized by the state, and the amount of the 
debt is limited by the state constitution. 

The law defining the general status and power of 
counties provides that each organized county shall be a 
body corporate and politic. As such it is empowered to 
sue and be sued, to purchase and hold property for its 
own use, to hold land sold for taxes as provided by law, to 
sell or convey any real or personal estate belonging to it, 
to make contracts and perform other acts in relation to 
its property and concerns, necessary to the exercise of 

3 Bunn Supp. Sec. 8206x-8206z4. S, L. 1915. Oh. 289 

4 S. L. 1919. Oh. 171 



Local Government 


515 


corporate or administrative power, and to exercise such 
other and further powers as may be especially provided 
for by law. 5 The character of the constitutional and 
legal provisions governing the counties will be considered 
in connection with the various functions which the county 
governments perform. 

According to the orthodox theory, counties are created 
by the state for reasons of administrative expediency, 
without regard to the wishes of the persons inhabiting 
them. In Oklahoma, however, as in many other new 
states, the initiative in organizing a new county lies with 
its inhabitants. The details of the law governing the 
creation of new counties are too numerous to be given 
here. Suffice it to say that upon the petition of fifty-one 
per cent of the legal voters of the territory concerned, an 
election must be called, and if at this election the forma¬ 
tion of the proposed county receives the approval of sixty 
percent of the voters participating therein, it is thereby 
created. 6 The changing of county boundaries and the lo¬ 
cation of county seats are also determined by popular 
vote. 

The New York Bureau of Municipal Research employs 
a classification of governmental functions into three 
groups, according to the character of the functions, viz: 
the organizational, planning, and control group, the propri¬ 
etary group, and the public service group. The first 
group contains the fundamental organization of govern¬ 
ment, the provision of a personnel, the determination of 
policy and making of plans, etc.; the second group com¬ 
prises those functions which devolve upon the govern¬ 
ment by virtue of its being a business organization, i. e., 

°R. L. 1930, Sec. 1497. 

8 Rev\ Laws 1910, Secs. 1503-1511. S. L. 1917, (la. 120, S. L. 
1919, Oh. 213 



516 


Government of Oklahoma 


levying taxes, assessments, the collection, care, and dis¬ 
bursement of money; the third group consists of all those 
functions which render direct services to the people. We 
shall investigate the functions of Oklahoma counties 
under these headings. 

The organization of county government is determined 
from above. Its structure is determined by general con¬ 
stitutional and legislative enactments, emanating from 
the people of the state as a whole, or from their elected 
representatives. As it is prescribed in detail by means 
of general legislation, no provision is made for variations 
in officers or functions because of differences in local 
conditions and problems. 

Oklahoma, in common with her sister states, has en¬ 
deavored to secure the utmost democracy in her county 
government, and in so doing has adopted—also in com¬ 
mon with the remainder of the family—a method of se¬ 
lecting county officials which is best described as de¬ 
mocracy gone to seed. Under this method the chief 
county offices are filled by direct election, in spite of the 
fact that the majority of these offices are not adapted to 
effective popular control. The elective officers are thir¬ 
teen in number, namely: three county commissioners, 
county judge, county attorney, sheriff, county clerk, 
court clerk, county assessor, county surveyor, public 
weigher, county superintendent of public instruction, and 
county treasurer. The commissioners are chosen by dis¬ 
tricts, so that each voter is required to examine and de¬ 
cide upon the character and qualifications of candidates 
for only eleven offices at each election—if we omit the 
candidates for state and national positions who are seek¬ 
ing office at the same time. The county officers are 


Local Government 


517 


chosen for a two year term at the biennial general elec¬ 
tion in November. 1 

Clerks and deputies are appointed by their immediate 
superiors. For most of these appointments the consent 
of the county commissioners is required, but this consent 
tends to become a mere formality. The commissioners 
themselves appoint certain minor county officers, whose 
duties are of a technical nature, while a few function¬ 
aries, in charge of functions especially related to the 
state government, are appointed by the heads of the de¬ 
partments in connection with which they work. 

Theoretically insuring democracy and good govern¬ 
ment, by providing for the individual and direct respon¬ 
sibility of every officer to the people from whom he de¬ 
rives his office, and to whom he must apply for re-elec¬ 
tion, this method of selection falls down in practice; 
first, because it diffuses responsibility, and, second, be¬ 
cause it imposes upon the electors a duty which they 
cannot perform. By rendering the chief county officers 
independent of each other and of any co-ordinating au¬ 
thority, it enables the official who is charged with negli¬ 
gence in his duties to shift the blame upon some other 
functionary, whose co-operation was necessary but over 
whom he could exert no influence, thus defeating the at¬ 
tempt to fix responsibility for inefficient government. 
Moreover, it presupposes that the electors possess the 
time and ability to check up the character and qualifica¬ 
tions of the candidates for all these eleven offices and in 
each case select the best man for the position, a supposi¬ 
tion not justified by the facts. The duties pertaining to 
the majority of these offices are technical, professional, 
or wholly administrative, having nothing to do with the de¬ 
termination of the policy of the county government. The 


7 Rev. Laws, 1910, Sec. 1548, as amended by S. L. 1917, Ch. 203. 



518 


Government of Oklahoma 


people cannot judge the qualifications of aspirants to 
such offices. The announcement of a candidate for 
county clerk in a certain Oklahoma county contained the 
statement: “All know his ability as a book-keeper,” but, 
unless the people of that county are much better informed 
than those in other localities, less than one per cent of 
them—to be conservative—possess any such knowledge. 
Intelligent and effective control of offices of this nature 
by popular election is impossible, and the attempt to se¬ 
cure such control is rendered still more fatuous by mak¬ 
ing so many positions elective that the voters, being finite 
creatures, are unable to give them proper consideration. 
Our county government would be much more democratic, 
because much more responsible and much more efficient, 
if the list of elective offices were limited to the county 
commissioners, and the others were filled by appoint¬ 
ment. The selection of those officers whose duties con¬ 
cern the county alone should be vested in the county com¬ 
missioners, while those whose functions torce them to 
work in co-operation with, or under the direction of, de¬ 
partments of the state government, or, as in case of local 
judicial officers, whose duty assumes both a local and a 
statewide aspect, should be appointed by the local authori¬ 
ties, with the approval of the state department. The 
county comissioners should have general control of and 
responsibility for the conduct of the county administration, 
and should be held responsible therefor by the people. At 
the same time, the elimination of so many elective offices 
from the ballot would permit the voters to give careful at¬ 
tention to the merits and demerits of the candidates for 
the position of commissioner. More efficiency, still, 
might be secured by restricting the commissioners to the 
determination of the general policy of the county, placing 
the control of administration, including the appointment 


Local Government 


519 


of the county administrative officers, in the hands of a 
bounty manager, appointed by the commissioners, after 
the plan adopted in so many cities. 

The county commissioners constitute the policy-determ¬ 
ining body of the county, within the limits prescribed by 
the constitution and by the laws. County policy is cir¬ 
cumscribed very closely by constitutional and legal pro¬ 
visions, and the problem of its determination is chiefly a 
question as to whether the county shall or shall not do 
certain things which the state has definitely given it au¬ 
thority to do. This concentration of planning authority 
in the hands of the commissioners is conducive to the for¬ 
mation of unified plans, and, if accompanied by a great¬ 
er degree of control over the administrative officers of 
the county, would make them a body which could be held 
responsible by the people for county administration in 
both of its branches, for “planning the work and working 
the plan.” 

The making of financial plans for the county govern¬ 
ment is also entrusted to the commissioners, but, as, will 
be seen, this is subject to the control of another body, 
namely, the county excise board. The work of this or¬ 
ganization and its effects will be discussed later, but it 
should be noted that its control over the amount of 
county revenues may often prove embarrassing to the com¬ 
missioners and fatal to their financial plans. Financial 
planning is also circumscribed by the fact that the salaries 
of county officers and their deputies, as well as the 
amounts which may be spent for certain purposes, are 
fixed by law. 

The proprietary functions of the Oklahoma county 
government are distributed among a number of 
elective officials. The manner in which each of these 
functions is to be exercised is rigidly prescribed by law, 


520 


Government of Oklahoma 


and in some instances is also subject to constitutional 
limitations. 

The assessment of property, with the exception of that 
of public service corporations, which is assessed by the 
state board of equalization, is performed by the county 
assessor. Beginning on January fifteenth of each year, 
he visits each city and voting precinct in the county, and 
secures the statements of the taxpayers as to the amount 
and value of the property owned by them which is sub¬ 
ject to the general property tax. After compiling the 
property lists from these statements, adding thereto all 
property which has not been voluntarily listed, with an 
additional assessment as penalty for such dereliction, he 
delivers the lists to the county commissioners, who act as 
the county board of equalization and have authority to 
raise, lower, and adjust individual assessments. County 
assessments are subject to review and adjustment, as be¬ 
tween counties, by the state board of equalization. After 
the county excise board has fixed the tax levies for the 
year, it certifies them to the assessor, who thereupon 
makes out the tax rolls, showing the total amount of per¬ 
sonal, real estate and corporation taxes, and delivers 
them to the county treasure^ for collection. 8 

The county excise board levies all taxes for the county 
and for the townships, cities, towns and school districts 
Within the county. This body was created in 1910, and 
was originally composed of the county judge, county 
clerk, county attorney, county treasurer and county super¬ 
intendent of public instruction. In 1917 its membership 
was increased by the addition of the county assessor and 
one county commissioner to be chosen by the board of 

8 Rev. Laws, 1910. Sec. 7373, Bunn. Supp. Secs. 7365a-7365p S L. 
1911, Ch. 152. 



Local Government 


521 


county commissioners. 9 To this board are submitted the 
estimates of the county and of the local municipal sub-di¬ 
visions at the close of the preceding fiscal year, together 
with itemized estimates of the amounts required for the 
current year. The board has power to examine these re¬ 
ports, and may revise them, either by striking out, increas¬ 
ing, or decreasing specific items, or by the addition of 
new items which have not been asked for by the officials 
submitting the estimate. Having revised and approved 
! the estimates, the excise board appropriates the sums 
necessary to meet the approved expenditures. It then as¬ 
certains the total assessed valuation and appropriation of 
the county and of the respective subdivisions, and levies 
the taxes in each for the following year, with an addition¬ 
al allowance of ten per cent for delinquent taxes. In 
making these levies, the excise board must keep within 
the limits prescribed by law for the tax rates of the vari¬ 
ous subdivisions. 

The county treasurer is responsible for the collection of 
the general property taxes for the state, for the county, 
and for the local units, as they appear on the tax roll de¬ 
livered to him by the assessor. Other moneys, fees, etc., 
due to the county, are collected by the officers empow¬ 
ered to secure them. Such money is required to be paid 
over daily to the county treasurer, who is the official cus¬ 
todian of all money belonging to the county. 10 The 
county treasurer pays over to the state and local treasur¬ 
ers monthly all moneys which he has collected on behalf 
of the state or of the local governments. County funds 
are paid out by the treasurer on the presentation of war¬ 
rants drawn by the county clerk. The various records 
and accounts which are to be kept by the treasurer and by 


Session Laws 1917, Ch. 226. 
L. 1917, Ch. 104. 



522 


Government of Oklahoma 


the county clerk for the purpose of accounting for the 
money in the hands of the former, are prescribed by law. 
The state examiner and inspector is required to examine 
without previous notice, the books of each county treasur¬ 
er twice each year, and is required to prescribe a uniform 
system of book-keeping for such officers in order to facil¬ 
itate the performance of his work. 11 

The incurring and payment of indebtedness by the 
county is subject to limitations, both constitutional and 
legal. The constitution requires that the indebtedness 
shall be incurred only with the consent of three-fifths of 
the voters, that the total indebtedness of the county shall 
not exceed five percent of its assessed valuation, and that 
it shall be repaid within twenty-five years from the date 
of its origin. 12 The constitution also requires that a sink¬ 
ing fund shall be established to insure such repayment. 
The legal limitations include laws passed to enforce the 
constitutional requirements, and, also, rules governing the 
procedure by which bonds are to be issued, the denomi¬ 
nations in which they may be issued, the interest to be 
paid, etc. These provisions vary according to the pur 
pose for which the bonds are issued. In general, the in¬ 
terest rate is limited to six per cent. Repayment is pro¬ 
vided for by means of sinking funds, which may be in¬ 
vested in bonds or warrants of the state or of any subdi¬ 
vision thereof. No provision is made for the issue of 
serial bonds. 

The purchase, maintenance, care and sale of county pro¬ 
perty is vested in the county commissioners, subject to the 
legal rules laid down for their guidance. The provision of 
a court room, of offices, supplies, and equipment for the 
various county officials, is also entrusted to the commis- 

“Const. Art. VI, Sec. 19. 

“Const. Art. X, Sec. 26. 



Local Government 


523 


sioners. The enumeration of such functions as the mak¬ 
ing of surveys and plans for public work by the county 
surveyor, the keeping of records by the county clerk, the 
consideration of claims against the county by the county 
commissioners, concludes the list of proprietary functions 
exercised by the county officials in Oklahoma. 

The public service functions of government are those 
which are of the most general interest, because it is for 
their performance that the government is created and au¬ 
thorized to exercise the functions of the two preceding 
classes. The activities of those two classes are necessary 
in order that the government may exist; it is the perform¬ 
ance of public services that justifies its existence. 

The administration of justice and the protection of per¬ 
son and property within the county may be dismissed with 
a few words. These services are, strictly speaking, per¬ 
formed by the state rather than by the county, although 
the county is the unit for their administration, and the 
compensation of the officials charged with these duties 
is paid out of thp county treasury. The constitution pro¬ 
vides for a county ’.ourt in each county with original juris¬ 
diction in civil and criminal cases, and appellate jurisdic¬ 
tion, civil and criminal, over the justice of the peace 
courts. 13 These latter courts—also provided by the con¬ 
stitution—have limited original jurisdiction, co-extensive 
with the county in misdeameanor and civil cases. Both 
justices of the peace and county judges act as examining 
and committing magistrates in felony cases. Thp method 
of selecting the county judge has already been described ; 
the justices of the peace are elected by districts. The 
county attorney, sheriff, and constables—the latter being 
chosen in the same manner as the justices of the peace— 



524 


Government of Oklahoma 


perform the duties commonly assigned to such officers in 
all states. 

The activities of the county in regard to public health are 
conducted under the supervision of the state board of health. 
The county superintendent of public health is appointed by 
the state commissioner for a term of two years, and is sub¬ 
ject to removal by the same authority. His duties pertain 
chiefly to the prevention and suppression of contagious and 
infectious diseases, for which purpose he is empowered to 
abolish nuisances dangerous to the public health, to estab¬ 
lish quarantine, to destroy impure or diseased articles of 
food, to enforce the rules and regulations of the state board 
of health, and to make special regulations, in co-operation 
with the county commissioners, to prevent the spread of ep¬ 
idemics in times of emergency. 14 Inasmuch as this work is, 
and should be carried on under the regulation and super¬ 
vision of a department of the state government, it is proper 
that the officer in charge should be appointed and removed 
by that department. The county may, if authorized by a 
majority vote of the people, establish a county hospital, is¬ 
suing bonds for its construction. The management of such 
hospital is vested in a board of control of from five to nine 
members, of which the county physician is ex-officio chair¬ 
man, the other members being appointed by the county com¬ 
missioners. 15 

The county performs several important functions in re¬ 
gard to education. It levies a tax—not exceeding one mill 
—in support of the common schools; it supports the “sep¬ 
arate schools”, if there be any; 10 and the county superin¬ 
tendent of public instruction is entrusted with various 

14 Rev. Laws, 1910, Secs. 6791-6802. 

15 S. L. 1919, Ch. 273. 

™An act of the seventh legislature provides that separate schools 
within independent districts must he supported by such districts S 
L. L. 1919, Ch. 28. 



Local Government 


525 


duties, chiefly supervisory. 17 The county superintendent, 
as he is generally termed, an elective official, must pos¬ 
sess a first grade teacher's certificate and be a resident 
of the county. He is vested with a general supervisory 
power over the schools and school boards in the several 
districts of the county. He receives reports of school 
affairs from teachers and from school boards, and in turn 
makes annual reports to the state superintendent, regard¬ 
ing educational affairs in the county. He establishes and 
changes school districts, subject to restrictions imposed 
upon him by law. He apportions among the school dis¬ 
tricts of the county, in proportion to their scholastic pop¬ 
ulation, the money contributed by the state and county 
for the support of common schools. 

The county superintendent is ex-officio chairman of 
the board of county examiners, and appoints the other 
two members of the body, which has charge of the issu¬ 
ance of teachers' certificates. This board is directed to 
hold examinations at stated intervals at places desig¬ 
nated by the county superintendent, and to issue certifi¬ 
cates to the applicants who pass these tests and “satisfy 
the board of their good moral character and their abil¬ 
ity to teach and govern a school successfully." 15 The 
board may issue teachers' certificates of three grades, ac¬ 
cording to the age and experience of the applicant, the 
subject in which he is examined, and the grades attained 
therein. Third grade certificates are valid for one year, 
and only in the county in which they are issued; second 
grade certificates are good for two years, and are valid in 
the county in which issued and in the counties contiguous 
thereto, while first grade certificates are good for four 
years, and are valid in any county in the state. The fact 
that certificates of the two higher grades are good in 

,T Bunn Supp..'01i. 74a, Art. IT: S. L. 1913. Oh. 219 Art. II. 

T8 Bnim Supp., See. 8050z 193; S. L. 1913. Oh. 219. Art. XIV, Sec. 2. 



526 


Government of Oklahoma 


counties other than that in which issued makes it impos¬ 
sible for any county to maintain a high standard for cer¬ 
tification. The incompetent teachers in a county which 
seeks to maintain a high standard have only to go to an¬ 
other county in which the standard is low and there se¬ 
cure the desired certificate. To remedy this situation the 
state superintendent of public instruction in his biennial 
report for 1916, recommended that the validity of certifi¬ 
cates issued by county authorities be limited to the county 
in which they are issued, and that the issuance of state¬ 
wide certificates be restricted to the state department of 
education. 

Counties having a scholastic population of less than 
two thousand may establish and maintain county high 
schools. The county high school when established, is 
under the control of a board of trustees, consisting of the 
county superintendent, who is ex-officio secretary and ex¬ 
ecutive officer of the board, and two members from each 
'commissioner’s district of the county, elected for a four 
tyear term, half of them retiring biennially. The powers 
of these trustees are of the type usually entrusted to a 
school board. 19 

The Oklahoma school laws provide for the separation 
of the students of the white and negro races. 20 In dis¬ 
tricts containing over ten children of school age belong¬ 
ing to the race having the fewest number of children in 
the district, a “separate school” is to be maintained for 
the children of that race. 

These separate schools are supported by the county, a 
special tax being levied for that purpose, and are under 
the control and supervision of the county superintendent, 

19 S. L. 1919, Ch. 96. 

W S. L. 1913, Ch. 219. Art. XV. 



Local Government 


527 


by whom the teachers are employed. 

The biennial report of the state superintendent of pub¬ 
lic instruction, issued in 1916, contained an interesting re¬ 
commendation for the re-organization of the county and 
local educational activities, the motive being the im¬ 
provement of the rural school facilities. Under this plan, 
the electors of the county, outside of the independent 
districts—cities of the first class and incorporated towns 
maintaining a four-year high school affiliated with the 
state university—would elect a county board of educa¬ 
tion, consisting of three members, and having control 
over all the public schools of the county, except those in 
the independent districts. This board would be given 
broad administrative powers and would appoint the 
county superintendent for a term not exceeding five 
years. Such centralization of educational activities is ad¬ 
visable from several standpoints, but it does not seem 
either desirable or expedient to thrust the responsibility 
of choosing three more officers upon an already over¬ 
burdened electorate. It would be better to vest this 
broad administrative power in the hands of the county 
superintendent, and to have him appointed by the county 
commissioners, preferably with the advice and consent 
of the state department of education, which should also 
have the power to recommend his removal for cause. 

Several functions of the class denominated as charities 
and corrections are assigned to the county government in 
Oklahoma. These relate to the relief of the poor, the 
care of the insane, and the custody of prisoners in the 
county jail. 

The support of the aged and indigent, “as may be pre¬ 
scribed by law”, is a duty imposed upon the counties of 
the state by the constitution. 21 By law the supervision of 


’'Const, Art XVTT Sec. 3. 



528 


Government of Oklahoma 


this function is vested in the county commissioners, who 
are ex-officio overseers of the poor. It is their duty to 
provide for the proper relief and care of all paupers who 
are residents of the county, and also to provide for the 
temporary relief of non-resident indigents, pending their 
transfer to the county or state of their legal residence. In 
order to furnish the necessary facilities for this service, 
the commissioners are authorized to establish a poor 
farm, either buying or renting the property therefor; to 
employ a superintendent for the poor farm, and to exer¬ 
cise general supervisory and regulatory power over it. In 
case the maintenance of a poor farm is not deemed advis¬ 
able, the commissioners may arrange for the care of the 
poor by contract. 23 Poor farms have been established 
in but few counties of the state, and according to the bi¬ 
ennial report of the state commissioner of charities and 
corrections for 1915-1916, only two counties which had 
established such farms had at this time adequate facili¬ 
ties for the care of the paupers. 

The administration of poor relief by the county govern¬ 
ment has been unsatisfactory in Oklahoma. This is due 
to several causes. In most of the counties of the state 
there are but few persons who need such relief. These 
counties justly feel that it is neither right nor expedient 
for them to spend large sums of money in supporting a 
poor farm in order to care for the few paupers within 
their borders. Even where the county does maintain a 
poor farm, it is unable to employ a superintendent who is 
an expert in such work or to provide adequate facilities 
for the care of the inmates. Moreover, in counties which 
contain a large city, the county authorities often refuse to 
care for the poor within the city, leaving them to be pro¬ 
vided for by private charity or by the municipality. All 

“Rev. Laws, 1910, Secs. 4525-4’29, 4536, 4540. 



Local Government 


529 


these factors combine to render the relief of the poor by 
the county government unsatisfactory and inefficient. 
The remedy appears to be the transfer of this function to 
the state government. By caring for all the poor of the 
istate in one institution adequate facilities could be pro¬ 
vided, competent officials could be employed, the friction 
between county and city would be done away with, and 
the waste caused by the duplication of institutions would 
be abolished. 

The care of the insane is a state function in Oklahoma, 
but the commitment of patients to state asylums is in 
charge of county officers. A person of unsound mind 
may be committed to an insane asylum by order of the 
county judge, if the judge is convinced by the testimony 
of two physicians and by a personal examination that the 
individual in question is unfit to be at large. A jury 
trial may be had on demand of the alleged lunatic or of 
his relatives or caretakers 23 . 

The law requires every county to establish a “prison”, 
which is to be used for keeping persons awaiting trial or 
duly committed as witnesses, those duly sentenced or com¬ 
mitted to jail, and those awaiting transportation to the 
state prison. The control of the county jail is vested in 
the sheriff, subject to the rules for its regulation and gov¬ 
ernment prescribed by the judge of the district court. The 
sheriff provides board and other necessities for the prison¬ 
ers, for which he receives such compensation as may be 
prescribed by the county commissioners. It is the duty of 
the commissioners to provide supplies, fixtures, and re¬ 
pairs for the jail, and to appoint a physician, paying him 
a salary if they deem it necessary. 24 

Those governmental activities which have as their pur- 

M S. L. 1917, Chap. 174. 

M Rev. Laws, 1910, Secs. 4579-4590. 



530 Government of Oklahoma 

pose the promotion of the general economic welfare form 
a very important division of the public service functions. 
The chief functions of this sort which are assigned to the 
Oklahoma county are the construction and maintenance of 
roads and bridges and certain activities in aid of agricul¬ 
ture. The supervision and oversight of these functions, 
as well as the determination of the extent to which they 
shall be performed, are, in general, entrusted to the county 
commissioners, although there are a few exceptions to this 
rule. 

By law it is made the duty of the county commissioners 
to co-operate with the state board of agriculture in pro¬ 
tecting livestock against contagious and infectious dis¬ 
eases, and especially to aid in the suppression and eradica¬ 
tion of the Texas fever tick. 25 Such co-operation is rend¬ 
ered by the construction of dipping vats, the employment 
of livestock inspectors, and the purchase of disinfectants 
for use in the dipping vats. Live stock inspectors receiv¬ 
ing compensation from the county are appointed by the, 
county commissioners, but receive their authority from 
the state board of agriculture, and this authority may be 
withdrawn by the board at its own discretion. The com¬ 
missioners may offer bounties for the destruction of bird 
and animal pests. They may co-operate with the United 
States Department of Agriculture in the conduct of farm 
demonstration work, but they may not expend over twelve 
hundred dollars annually for that purpose. In 1915 a 
law was enacted providing for a system of free county 
and township fairs, such fairs being held under the aus¬ 
pices of local fair associations. The county excise board 
may, upon the estimate of the county fair association, levy 


“Rev. Laws, 1910, Sees. 29-31. 



Local Government 


531 


a tax of not over one-fourth of one mill in aid of the free 
fair system. 2,5 

Each county has an elective county weigher, who, with 
(his deputies, performs the duties of weighing for the pub¬ 
lic, coal, cotton, corn, grain, hay and “all other farm pro¬ 
ducts sold by weight.” The weighers provide their own 
offices and equipment, and collect, as compensation for 
their services, fees, the amount of which is fixed by law. 27 

The construction and maintenance of roads and 
bridges is divided between the county and the township 
governments. The county commissioners are required 
to designate from ten to fifteen per cent of the total road 
mileage of the county as state roads. The county con¬ 
structs and maintains the state roads within its bounda¬ 
ries, the bridges and culverts on the state roads, and all 
bridges and culverts with a span of over twenty feet. 
The county commissioners have charge of this work, under 
the supervision and control of the state highway depart¬ 
ment. The county engineer, who is appointed and re¬ 
moved by the county commissioners, makes surveys, 
plans, and estimates, and supervises construction. The 
cost of such construction is borne by the county. Counties 
levying a general tax of one fourth of one mill for the 
construction and maintenance of highways, and carrying 
on such work under the supervision and direction of the 
state highway department, receive aid from the state to 
the amount of the one-fourth mill state road tax collected 
within their borders. 

All public roads other than the state roads are desig¬ 
nated as the township road system, and their construc¬ 
tion and maintenance are entrusted to the township gov¬ 
ernments. Townships are also charged with the con- 

M S. L. 1911, Ch. 118 Bunn Supp. Secs. 27a-27w. 

’"Rev. Laws, 1910, 1738-1748. 



532 


Government of Oklahoma 


struction and maintenance of bridges and culverts on the 
township road system having a span of less than twenty 
feet. Where township government has been abolished, 
the control and supervision of the road and bridge work 
formerly assigned to the township is vested in the county 
commissioners, thus uniting the activities of this type 
under one central control. 28 

The general relation of the county to the state and the 
supervisory and regulatory power exercised by certain 
branches of the state government over some of the activi¬ 
ties of the county have already been noted. It has also 
been seen that some county officers exercise a supervisory 
power over other local officers. There remain to be con¬ 
sidered two important phases of Oklahoma county govern¬ 
ment. One of these is the power over the finances of the 
towns, cities, and the other minor governmental units, ex¬ 
ercised by the county excise board; the other is the so- 
called “attorney-general’s law of 1913”. 

The organization and powers of the county excise 
board have already been described. The argument 
advanced in its favor at the time of its creation was 
that the towns and counties of the eastern half of the 
state, because of their previous inexperience in local 
self-government, were making unwise and extravagant 
expenditures which could best be checked by such a 
body as the excise board. Whatever its advantages 
as a check upon local financial excesses may 'have 
been, it has proved a source of constant irritation to 
the cities of the state. The excise boards are com¬ 
posed of persons who, through no fault of their own, 
are usually unacquainted with the problems and needs 
of the cities whose budgets they control, and hence 
often eliminate or reduce items which are regarded as 


*S. L. 1915. Ch. 173. 



Local Government 


533 


absolutely necessary by the municipal administrators. 
Friction and the curtailment of city activities have 
been the almost inevitable result. With the experi¬ 
ence in local self-government acquired since 1907, the 
counties and cities of Oklahoma should be able to 
manage their own fiscal policy, and the abolition of 
the county excise board would be a great aid to effective and 
responsible financial planning by county and city adminis¬ 
trators. 

The lax enforcement of the prohibitory and other 
laws in some counties, especially in the oil fields, led 
to the enactment by the 1917 legislature of a measure 
commonly termed the “attorney-general’s law 29 .” By the 
provisions of this law, the attorney general, whenever he 
has reason to believe that the gambling law, the prohibitory 
law, or other penal statutes of the state are being openly 
and notoriously violated in any county or city, and that the 
city or county officers are making no effort to enforce them, 
may institute ouster proceedings against the officials at 
fault. Provision is also made for the institution of such 
proceedings by direction of the governor or on the sworn 
complaint of five reputable citizens of the locality for 
“official misconduct,” which as defined by the law in¬ 
cludes wilful neglect of duty, voluntary intoxication 
in public, and criminal offenses involving “moral turpi¬ 
tude.” In order to guard against a failure of such pro¬ 
ceedings because of local sentiment adverse to the 
prosecution, the law gives the attorney general the option 
of instituting this suit either in the district court of the 
county in which the accused officer resides or in the supreme 
court of the state. Proof of the open and notorious viola¬ 
tion of any of the penal statutes of the state which the 
accused officer is enjoined by law to enforce, constitutes 


’S. L. 1917, Ch. 205. 



534 


Government of Oklahoma 


prima facie evidence of official misconduct, and unless con¬ 
troverted is sufficient ground for removal. Several local 
officials have been removed under this law, but in no case 
as yet has the original jurisdiction of the supreme court 
been successfully invoked. In refusing to take original 
jurisdiction over proceedings for the removal of the 
sheriff of Oklahoma County in September, 1920, the 
court based its decision on the ground that it did not 
appear that a fair trial could not be had in Oklahoma 
County, but members of the court expressed themselves 
as being in doubt as to the constitutionality of that 
part of the act conferring original jurisdiction in these 
cases on the supreme court, although no reason was assigned 
for this doubt 29a . 

As we have seen, the structure of the Oklahoma 
county government is determined by the state and is 
uniform for all counties. No provision is made for 
variations in the governmental organization of particu¬ 
lar counties which might be desirable because of dif¬ 
ferences in local conditions, such as might, for ex¬ 
ample, occur in counties of an exclusively or prepon¬ 
derantly urban character. This enforced uniformity has 
been condemned by many reformers who have urged home 
rule for counties with the right of determining their own 
form of government, similar to the privileges enjoyed by 
cities. California, however, is the only state which has 
adopted such a measure. In Oklahoma, where as yet there 
is but little difference in the conditions existing in the va¬ 
rious counties, the alleged disadvantages of this uniformity 
have not been so apparent. 

The most glaring defects of county government in 

“ a Daily Oklahoman. September 8. 1920. 

This case has not been reported, in either the official reports or 
in the private reporters, (1922). 



Local Government 


535 


Oklahoma are its decentralized organization and the 
method by which county officers are chosen. These 
two factors make the organization of our counties—as 
one authority has said of the organization of American 
county government in general—“ideally bad.” The 
multiplicity of elective officers defeats rather than 
insures democracy, and at the same time fosters in¬ 
efficient government. Democracy is possible only where 
the electors are able to exercise an intelligent choice and 
where the elective officers may be held responsible to the 
people for their official acts. Neither of these conditions 
is obtainable under our system of county government. The 
electorate cannot intelligently choose the county officers 
because there are so many elective officers that for lack of 
time they cannot inquire into the character and qualifica¬ 
tions of the candidates therefor, and because the duties 
of the majority of these positions are of a technical and ad¬ 
ministrative character. The qualifications which fit a man 
for such positions are not susceptible of determination by 
a plebiscite at the close of a political campaign. Further¬ 
more, the difficulty of securing an intelligent choice of 
county officials by popular vote is increased by the fact 
that most of the positions are of minor importance so that 
little interest is taken in the contest for them. Moreover, 
the people cannot enforce responsibility upon their serv¬ 
ants for the manner in which the county administration is 
conducted, because each officer is independent of all the 
rest, and there is no one to supervise the administration In 
general, to see that the officers co-operate with each ctlier 
as they should. It is the duty of the people, and of 
the people alone, to see that the individual officer 
performs his tasks efficiently, and since, as we have 
seen, this is precluded by the number of the officers 
and the character of their duties, it is left undone. 


536 


Government of Oklahoma 


The governmental inefficiency and irresponsibility 
fostered by these conditions is enhanced by the de¬ 
tailed legislative restrictions under which the counties 
are placed, by an improper distribution of functions be¬ 
tween the state, the county and minor subdivisions, and 
by the lack of any well-organized, efficient system of ad¬ 
ministrative control and aid on the part of the state in 
respect to the local governments. 

This situation is all the more deplorable when we 
remember that out of every dollar of taxes paid by the 
average citizen, at least eighty cents, and generally 
more, is spent by the county and other local govern¬ 
ments. We elect governors and legislators, and com¬ 
mand them to give us an ecomical government in order 
that our tax bill may be reduced, but it is beyond their 
power to reduce that bill to any appreciable extent. Relief 
from high taxes can only come when our local government 
is so reorganized as to be both efficient and democratic. 
This problem of reorganization has a two-fold aspect; 
first, the structural reorganization of the county govern¬ 
ment so as to provide for efficiency and responsibility; 
second, a recasting of the relationship and of the distri¬ 
bution of duties between the state, the county and other 
local governmental units. 

In the reorganization of county government, the 
county commissioners should be retained as the only elective 
officers. They should be vested with the determination 
of the general policy of the county, and should be held re¬ 
sponsible by the people for the degree of success or failure 
attained by the county in the performance of its functions. 
They should not, however, attempt to carry on, as at present, 
the detailed work of administration. As an elective, po¬ 
litical, amateur body, the duties of the board of commis¬ 
sioners should be to vote the budget, to levy taxes, to de- 


Local Government 


537 


termine matters of general policy and to see that 
policy is honestly and efficiently carried out by profession¬ 
al administrators. The county commissioners should ap¬ 
point the county manager, whose relation to the county 
should be substantially the same as that of a city 
manager to a city. He should be a non-political, profes¬ 
sional officer, receiving a salary sufficient to attract able 
men into this type of career, and should be retained as long 
as he renders efficient service. All heads of departments 
should be appointed by him, and should be responsible to 
him for the proper performance of their duties. He should 
supervise the county administration, both in planning and 
in executing, and should be held responsible by the com¬ 
missioners for the proper functioning of the county gov¬ 
ernment. 

The detailed work of county administration, instead 
of being distributed, as at present, among a large num¬ 
ber of independent officers, should be grouped into 
departments, according to the type of function per¬ 
formed. Each department should be placed in charge 
bf a single head, appointed by the manager, and held 
responsible to him for efficient conduct of the department. 
Subordinates should be appointed by the head of the de¬ 
partment in which they work. 

In connection with the functional reorganization of 
the county administration, there should be a reap¬ 
portionment of functions between the county and other 
local governmental 'units and the state. As suggested 
in a later portion of this chapter, the township func¬ 
tions in regard to health and roads should be trans¬ 
ferred to the county. Similarly, the county should 
be made the unit of school administration. In this 
manner, districts could be consolidated, duplication of 
teachers and equipment could be to some extent 


538 


Government of Oklahoma 


avoided, centralized purchasing would be made pos¬ 
sible, a uniform educational standard could be main¬ 
tained ; all at no greater cost than at present. 

Some functions should be transferred from the 
county to the state. Justice in the apportionment of tax 
burdens requires that a uniform system of assessing pro¬ 
perty be followed throughout the state. This is impossible 
so long as assessment is entrusted to locally elected officers, 
and that duty should be assigned to the state department 
of finance. Judges, county attorneys, sheriffs, all are 
primarily engaged in state functions—the interpretation 
and enforcement of the law—and should be appointed by the 
state department within whose domain the particular duties 
of each fall, although, since the county attorney also acts 
as legal adviser for the county, it might be well to vest 
his selection in the county commissioners, subject to the 
approval of the state department of justice. Court clerks 
should be appointed by the courts which they serve. Since 
poor relief is for the most part a minor function, for the 
sake of economy it should be centralized, and those paup¬ 
ers who need public support should be cared for in a sin¬ 
gle state institution. Main highways, for the reasons stat¬ 
ed in the chapter on highway administration, should be 
constructed and maintained by the state. , 

With this reapportionment of functions, the county 
administration could be taken care of by six depart¬ 
ments, viz: finance, public welfare, public works, pub¬ 
lic records, education, agriculture. The department 
of finance should have charge of the collection of taxes 
and other revenues, the care of the county’s money, 
the forwarding of state taxes to the state treasury, 
the disbursement of county funds on proper authority, 
and all other county financial administration. The 
department of public welfare should have charge of 


Local Government 


539 


the enforcement of the laws relating to compulsory 
education and child labor, should be entrusted with the 
duty of following up all persons discharged from 
hospitals for the insane and similar state institutions 
in order to see that they receive proper care, and should 
be given the oversight and supervision of all persons re¬ 
leased on parole or probation. It should have charge 
of the work of looking after dependent, neglected, 
delinquent or defective children, should investigate the 
need of poor relief, and should have the administra¬ 
tion of such “outdoor” relief as is given by the county. 
It should also have charge of the county activities in 
regard to health, such as the registration of vital 
statistics, the control and prevention of contagious 
diseases, the local supervision of water supplies and 
sewage disposal, and the county physician’s office. If 
the county sees fit to employ a public nurse or to 
maintain a county hospital, such functions should be 
assigned to the department of public welfare. This 
department should also assist the state board of wel¬ 
fare and the state health department in making sur¬ 
veys, studies, etc,, within the county. The functions above 
outlined are so closely related that it seems better to place 
them under one department, with such bureaus as the needs 
of the particular county may require. 

The department of public works should be entrusted 
with the planning, construction, custody, and care of 
county buildings, the construction and maintenance of 
the county highway system, and all other public en¬ 
gineering work in the county, such as the making of 
surveys, etc. The recording of deeds and other in¬ 
struments affecting real estate, and the keeping of public 
records within the county should be assigned to the de¬ 
partment of that name. The functions of the countv 


540 


Government of Oklahoma 


weigher should be assigned to that department, also. 
The department of education should administer the 
schools of the county, under the county unit plan. 
The functions of the county in regard to agriculture 
should, in view of the importance of the industry to 
Oklahoma, be reorganized and made more efficient. 
The department of agriculture should be charged with 
farm demonstration work, the eradication of livestock 
diseases and other pests, the maintenance of fairs, etc. 

With the adoption of this functional reorganization 
of the county government, the county would render 
a much wider service to the people and render it 
much more efficiently than at present, while com¬ 
plete democratic control would be retained. If the pro¬ 
posals for the administrative control of the counties, 
towns, etc., through a local government department, and 
for a state civil service department, as outlined in the 
final chapter, are adopted, still better results may be ex¬ 
pected. Along with the establishment of such a system 
of administrative control, many of the strict legal pro¬ 
visions now applied to county government should be 
abolished, especially those relating to finance. The 
county excise board, with its amateur administrative con¬ 
trol over the finance of counties, cities and towns, should 
be abolished in favor of the professionally organized local 
government department. 

The foregoing suggestions for reform are based upon 
the supposition that it is desirable to retain the pre¬ 
sent status of the county as a semi-independent unit 
of government, selecting its own officers and deter¬ 
mining its own policy, subject only to the general 
legislative and administrative control of the state. This 
supposition assumes that the functions to be performed 
by the county are of a purely local nature, that they 


Local Government 


541 


concern the people of the county alone, and that the 
efficiency or inefficiency with which they are per¬ 
formed in any particular county exerts no influence 
upon the welfare of the people of the state as a whole. 
When, however, we examine the different functions 
now performed by the county government, we find that 
practically all of those functions are of such a nature 
that very plausible arguments may be made in favor 
of placing them under the direct administrative con¬ 
trol and supervision of the state government. 

That the administration of justice and the enforce¬ 
ment of law are state functions is self-evident. To 
permit the counties to choose, by election or by ap¬ 
pointment, the officers who are charged with the en¬ 
forcement of state laws is to tolerate the local veto of leg¬ 
islation representating the “common sense of most” by any 
refractory county in which public opinion does not ap¬ 
prove of some particular statute. The “attorney general’s 
law” was passed in order to defeat this “local veto,” but 
the means provided are inadequate because they are neg¬ 
ative rather than positive. The measure furnishes a 
means of punishing unfaithful officers after they nave 
permitted the state laws to be violated openly and notor¬ 
iously, but it does not insure the choice of officers who 
will enforce the law in spite of all unfavorable local senti¬ 
ment. Uniform and effective enforcement of all state 
laws can best be secured by entrusting such enforcement 
to state officers. 

That the protection of the public health is a matter 
for state control and supervision is recognized in Ok¬ 
lahoma by the organization of the county health ac¬ 
tivities under the state health department. The county 
health officer is appointed and removed by the state 
health commissioner, and the regulations which are to be 


542 


Government of Oklahoma 


enforced by the county health officer are made by the state 
health department. The advisability of placing the state 
government in charge of poor relief has already been dis¬ 
cussed. 

It has been a cardinal principle of American govern¬ 
mental theory and practice that education is a proper 
subject for local control, yet there has been a gradual 
tendency toward the vesting of educational activities 
in larger and larger units. Many states have now ad¬ 
opted the “county unit” system, and the state super¬ 
intendent of public instruction and the state teachers' 
association are now advocating it for Oklahoma. Do 
not conditions call for a still more centralized and uni¬ 
fied organization of education, statewide in character, 
whereby the curriculum, length of term, qualifications 
of teachers, and other matters of general policy would 
be determined by the state educational department, and 
the actual administration of education within the county 
would be placed in charge of an officer appointed by this 
department and subject to its control? The shifting char¬ 
acter of our population, which results in the frequent trans¬ 
fer of pupils from one district to another, and the necessity 
of an enlightened citizenship in order that democracy may 
be successful, demand that our schools be maintained upon 
a uniformly high standard throughout the state, and that in 
no locality shall the children be deprived of proper educa¬ 
tional facilities because of the inability or reluctance of the 
taxpayers to provide them. 

A similar situation exists in regard to the construc¬ 
tion and maintenance of highways. The development 
of the automobile, its increasing use for the transporta¬ 
tion of both passengers and freight, have removed the 
provision and care of the public roads from the ex¬ 
clusive domain of the local governments and made it 


Local Government 


543 


a matter of statewide importance. Communication 
between the different sections of the state must not be 
interrupted because of the failure of some township 
or county to maintain its highways in a passable con¬ 
dition. 

Thus we see that the chief public services now per¬ 
formed by the county are of such a nature that the 
welfare of the state as a whole requires them to be 
performed in a uniformly efficient manner. This can¬ 
not be assured if each county is permitted to deter¬ 
mine the manner in which it will perform them, be¬ 
cause the taxpayers in many counties may not be will¬ 
ing to bear the tax burden requisite to proper perform¬ 
ance, and also because county officers are often un¬ 
able or unwilling to secure the services of technical 
experts. On the other hand, the state government is 
able to put into operation a uniform system through¬ 
out the state and can command the funds and the 
expert services necessary to make that system a suc¬ 
cess, regardless of local opposition. These advantages 
would be secured by placing the state government in 
charge of all the public services now performed by the 
county governments. 

The transfer of the public service functions to the 
state government would necessarily result in a similar 
transfer of the functions of the other two groups. The 
purchase, care, and maintenance of property and sup¬ 
plies would be allotted to the various state depart¬ 
ments which took over the public service functions. 
Revenue for the different services would be provided 
by a state tax and expended by state officers. The 
assessment of property would also be performed by 
state officials, incidentally permitting the establish¬ 
ment of a uniform method of assessment throughout 


544 


Government of Oklahoma 


the state. The provision of personnel and the making 
of plans would also be assigned to the various state 
departments. Under such a plan the county would 
cease to be a unit of local self-government, and would 
become a mere administrative subdivision of the state. 

Such a change would indubitably result in a much 
greater administrative efficiency than is now obtained 
in the performance of these functions by the county govern¬ 
ment, and therein lies the strength of the argument for its 
adoption. However, it would necessitate an entire 
reorganization of our whole system of state and local 
administration, and, therefore, a very heavy burden 
of proof is imposed upon its proponents. There are 
several factors which render it of doubtful expediency, 
be the administrative advantages ever so many. The 
success of any democratic government is dependent 
upon the intelligent interest of the citizens in govern¬ 
mental activities. The administrative branch of the 
state government is in some degree a distant and, there¬ 
fore, rather uninteresting organization from the stand¬ 
point of the average citizen. He has no personal ac¬ 
quaintance or contact with its elective officials. His own 
vote seems insignificant in its power to influence the state’s 
policy, when merged in the grand total of the electorate. At 
its best the state government, from his point of view, func¬ 
tions more like a master than like a servant. Local func¬ 
tionaries, too, if their position and tenure of office depend 
upon the central government, tend to become inconsiderate 
of the desires, interests, and needs of the communities. 
Bureaucracy has ever been the cardinal defect of cen¬ 
tralized government. In order to protect the legiti¬ 
mate desires of localities, as well as to preserve and 
stimulate the interest of the people in their local 
government, the county should be retained. It must be 


Local Government 


545 


admitted that the county fails to accomplish fully these 
results at the present time. County governments are 
notoriously inefficient. The interest of the people in 
them is chiefly confined to the biennial election, and 
even then is ordinarily perfunctory. But, as has been 
pointed out, inefficiency in the county is largely due 
to erroneous conceptions of democracy, faulty organiza¬ 
tion, and a lack of proper administrative control by the 
state. Lack of popular interest in the government may 
be traced to the same causes; and both evils should 
disappear when these causes are removed. 

It is probable that if the county government were 
reorganized according to the suggestions previously 
made, the interests of the state as a whole could be 
safeguarded and the requisite efficiency attained, by 
establishing certain minimum standards of accomplish¬ 
ment for each of these functions and providing strict 
central supervision backed by a legal power to enforce 
these standards, at the same time leaving each county 
free to select its own officials, and to exceed these 
minimum standards. In this manner the desired ef¬ 
ficiency and uniformity could probably be secured 
without such a radical step as the abolition of local 
self-government in the counties. 

OTHER LOCAL GOVERNMENT UNITS 

We now pass to the consideration of the govern¬ 
ment of the minor civil divisions of the state, viz., 
townships and school districts. Cities and incorpor¬ 
ated towns are treated in another chapter and hence 
are not considered here. While, as has already been 
stated, township government has been abolished in 
all but twenty-one of the counties of the state, never¬ 
theless in all counties the township continues to exist 


546 


Government of Oklahoma 


as an administrative unit, principally in connection wich 
the construction and maintenance of roads. 

The townships are created, or discontinued, and 
their boundaries altered by the county commissioners, 
subject to the limitations that no city or incorporated 
town of more than fifteen hundred population shall 
be included within any township, and that any new 
township must have an area of at least thirty-six square 
miles, and a population of at least three hundred. 30 . 

The governing body of the township is the township 
board, consisting of a trustee, a clerk, and a treasurer, 
chosen for a two year term at each biennial general 
election. This body audits and approves or disapproves 
all claims against the township, “provides for” all 
taxes for township purposes, subject to the usual con¬ 
trol of the county excise board 33 , and has charge of the func¬ 
tions carried on by the township. The special duties of the 
clerk and treasurer are those indicated by their names. In 
counties where township government has been abolished, 
county commissioners perform the functions of the town¬ 
ship board, while the clerical and financial work of the town¬ 
ship has been delegated to the county clerk and county 
treasurer. 

The most important public service function of the 
township is the care and maintenance of the “town¬ 
ship road system”. From these roads the township 
board selects those which are to be dragged during 
the year, appoints a township road superintendent who 
has charge of the maintenance and repair work on the 
town^hio road system, and has general care of the 
local roads within the township. 32 


30 Rev. Laws, 1910, Secs, 8172-8173. 

31 Rev. Laws, 1910, Secs. 8178, 7378. 

32 P>unn. Sapp.. Sec. 7634p: S. L. 1915, Ch. 173, Sec. 10. 




Local Government 


547 


The township board acts as a board of health under 
the supervision of the county superintendent of health 
and the rules and regulations of the state board of health 33 . 
Townships, acting through their boards, have the power to 
establish and maintain public cemeteries 34 . 

The abolition of township government in so many 
counties is an indication of its failure throughout the 
state. The functions performed by it were too few, 
the area involved too small, to arouse public interest 
or to permit efficient functioning. The abolition of 
township government was a step in the right direction. 
It should be supplemented by doing away with the 
township as an administrative unit, the abolition of the 
separate township funds, and a merger of all local high¬ 
ways into a single co-ordinate county system. 

Each city of the first class, and each incorporated 
town maintaining a four-year high school fully accredited 
with the state university constitutes an independent 
school district 35 . Adjacent outlying territory may be 
attached to an independent school district, on petition 
of a majority of the qualified voters of such territory 
by order of the county superintendent. 36 Other school dis¬ 
tricts are created by the county superintendent at his dis¬ 
cretion, subject to legal limitations as to the area, popula¬ 
tion, and assessed valuation of such districts 37 . 

The functions of the ordinary school district are 
exercised by two bodies; the “meeting” of all the elec¬ 
tors of the district; and the district board. Annual 
school district meetings are held on the last Tuesday 
in March 37 . Special meetings may be called by the district 


^Rev. Laws, 1910, Sec. 6792. 

34 S. L. 1917, Clh. 107. 

35 S. L. 1913, Ch. 219, Art. VI, Sec. 1: Bunn Supp., Sec. 8050z 64. 
^S. L. 1913, Ch. 219, Art. VI, Sec. 2; Bunn Supp., Sec. 8050z 65. 
37 S. L. 1913, Ch. 219, Art. II, Sec. 11; Bunn Supp., Sec. 8050t 



548 


Government of Oklahoma 


board. The district meeting elects the members of the 
school board, designates the site of the school house, author¬ 
izes the sale of district property, and fixes the length of the 
school term 38 . 

The school board consists of three members chosen 
for a three year term, one member retiring each year. 
In addition to being qualified electors of the district, 
they must be able to read and write the English langu¬ 
age. They have the general oversight and direction 
of the district school or schools. The board employs teach¬ 
ers, purchases supplies, provides and cares for the 
schoolhouse, and exercises a general supervisory power 
over the schools 39 . The county treasurer is the custodian 
of the funds of all school districts except independent 
school districts in cities of the first class 40 . 

Independent school districts outside of cities of the 
first class are governed by the same organization as 
ordinary school districts. Cities of the first class 
choose a board of directors, consisting of one member 
from each ward, nominated by the voters of the ward 
but elected by the entire electorate, for a four year 
term 41 . If the district contains “outlying” territory, 
one member is nominated from such territory. If there 
is none, one member is nominated and elected from 
the district at large. Cities with a population of over 
twenty-five thousand do not elect a member from the 
outlying territory 42 . In cities of more than fifty thousand 

K S. L. 1913, Ch. 219, Art. 3, Secs. 6-9; S. L. 1915, Ch. 278, Sec. 1: 
Bunn Supp. Secs. 805zl2-8050zl5. 

’’S. L. 1913, Ch. 219, Art. 3, Secs. 10-15; Bunn Supp. Secs. 8050zl6- 
8050z61. 

40 S. L. 1913, Ch. 219, Art. 5, Sec. 34; Bunn Supp. Sec. 8050z57, 
S. L». 1917, Ch. 97. . 

41 S. L. 1913, Ch. 219, Art. 6 Sec. 6; S. L. 1915, Ch. 278, 
Sec. 3; Bunn Supp. Sec. 85050z69. 

"S. L. 1917, Ch. 97. 



Local Government 


* 549 


population, two members are chosen from each ward. 43 
Part of the board retires every two years. 44 Cities from 
adopt “home rule” charters may regulate the membership 
and term of office of their board of education by such 
charters. 45 

The custody of the funds of such school districts is giv¬ 
en to a treasurer, chosen for a two year term by popular 
vote. In the absence of charter provisions, city school of¬ 
ficers are chosen at the regular municipal elections. 4 ' 

The board of education has general charge of the 
schools of the district. It selects the superintendent and 
the teachers. 47 It organizes and maintains a system of 
graded and high schools. 43 It has sole control over the 
schools and school property of the city. It prepares the 
school budget for submission to the county excise board, 4 * 
and performs other functions necessary to the mainten¬ 
ance of the city schools, subject to the regulation of the 
general school laws of the state. 

To promote better educational facilities in rural dis¬ 
tricts, provision is made for the combination of adjacent 
districts by the vote of a majority of the people of such 
districts. These combined districts, known either as con¬ 
solidated or as union graded districts, according to the 
type of school maintained by them, are subject to the 
same governmental organization and have the same func- 

*S. L. 1913, Ch. 219, Art. 6, Sec. 6a; Bunn Supp. Sec. 8050%70 

44 S. L. 1913, Oh. 219, Art. 6, Sec. 6, S. L. 1915. Ch. 278, Sec. 3. 
Bunn Supp. Sec. 8050x69. 

"Ibid. 

"Ibid. 

47 S. L. 1913, Ch. 219, Art. 6, Sec. 14; S. I*. 1915, Ch. 71 
Bunn Supp. Sec. 8050x78. 

"S. L. 1915, Ch. 219, Art. 6, Sec. 8; Bunn Supp. Sec. 8050x72. 

4fl S. L. 1915, Ch. 192 Bunn Supp. Sec. 8050x106. 



550 . 


Government of Oklahoma 


tions as the ordinary school district. 50 

The organization of school district government is open 
to little criticism. The line of responsibility runs from 
the teacher and administrative officers of the schools 
through the elective board to the people. There is no di¬ 
vided responsibility, no opportunity for the shifting of 
blame from one elective officer to another, such as we ob¬ 
serve in so many other of our governmental units. That 
faults do exist in our system of public education is unde¬ 
niable, but these faults, so far as they relate to govern¬ 
ment, are such as come from the size of the local units and 
the lack of efficient administrative control over them, 
rather than the governmental organization of the units. 
In many school districts, public sentiment will not support 
the schools adequately. In many others, the poverty of 
the district forbids such support. The solution of this 
problem may be found in the adoption of the county unit 
plan of school administration, coupled with a more insis¬ 
tent requirement of high standards, and a more effective 
administrative control by the state department of educa¬ 
tion. 


"°S. L. 1911, Ch. 122; S. L. 1913, Ch. 219, Art. 7; S. L. 1915, Chs. 
202, 184; S. L. 1917, Ch. 252, Ch. 278; S. L. 1919, Ch. 148, Ch. 186; 



CHAPTER XX 


MUNICIPAL GOVERNMENT 

The municipalities of Oklahoma may be classified into 
three distinct classes: incorporated towns, cities organiz¬ 
ed by the legislature, and home rule cities. 

Incorporated towns consist of villages or small com¬ 
munities which, in order to carry on certain common en¬ 
terprises or purposes, have secured from the state a chart¬ 
er authorizing them to act as a municipal corporation. As 
a rule, these towns are of less than two thousand popula¬ 
tion, since larger places have the right to become cities. 

Communities of more than two thousand may become 
cities upon following the procedure outlined by statute. 
Such places may adopt either the general code of the 
state prescribing the organization of such cities, their of¬ 
ficers, their powers, duties and responsibilities, or they 
may frame their own charter. In the former case they 
are generally known as cities under the statutory form of 
government. In case a city decides to frame its own 
charter it establishes its own organization, determines 
what officers it shall have, outlines their powers and du¬ 
ties, and also determines in a general way the powers and 
duties of the city as a city. Such a charter is, however, 
by the constitution made subject to the constitution and 
general laws of the state. 

TOWNS 

When it is desired to incorporate a town in Oklahoma, 
the persons interested must make a survey 1 of the property 
to be incorporated and take a census 2 of the resident popu- 


'R. L. Okla. 1910, Sec. 66.3. 

2 Ibid. Sec. 664. 


(551) 



552 


Government of Oklahoma 


lation. The survey map and census must be left at some 
convenient place for examination by those interested in 
such application for a period of thirty days. 3 One third of 
the whole number of qualified voters as well as the ori¬ 
ginal applicants must next subscribe to a petition for in¬ 
corporation as a town, setting forth the boundaries, the 
quantity of land embraced in the townsite, and the resi¬ 
dent population. This petition, together with affidavits 
verifying the above facts, is presented to the board of 
county commissioners. 4 The county commissioners being 
assured either by affidavit or by witnesses that the facts 
in the petition are true and that all previous procedure 
has been properly complied with, make an order declar¬ 
ing that such territory, with the assent of the majority of 
the voters therein, shall become an incorporated town, 
bearing the name contained in the application. This 
name must be different from that of any other town in the 
state. 5 The commissioners include in the order a notice 
for a meeting of the qualified voters resident in the pro¬ 
posed town, at a convenient place, on some day within a 
month’s time, to determine whether such territory shall 
become an incorporated town. The board gives ten days’ 
notice of this meeting by publication and also by posting 
copies of the notice. 6 The voters at the meeting select 
three election inspectors who receive the ballots and count 
the vote. 7 In case the majority of votes cast are against 
the proposition, no further proceedings are necessary. If 
the majority of votes are in favor of incorporation, the 
result of the election is verified on affidavit by the in¬ 
spectors, who report it to the board of county commis- 

Tbid. Sec. 665. 

Tbid. Sec. 666. 

Tbid. Sec. 667. 

Tbid. Sec. 668. 

Tbid. Sec. 670. 



Municipal Organizations 


553 


sioners at their next session. If the commissioners are 
satisfied of the legality of the election, they make an order 
declaring that the town has been incorporated under the 
name adopted. 8 This order is conclusive of such incorpora¬ 
tion in all suits by or against such corporation: “and the 
existence of such corporation by the name and style afore¬ 
said shall thereafter be judicially taken notice of in all the 
courts and places in this State without specially pleading 
or alleging the same”. 8 

When the inspectors receive the above mentioned order 
from the county commissioners, they divide the town into 
not more than seven or less than three districts for the 
purpose of electing the town officers. By both published 
and printed notice, they inform the voters of the time at 
w T hich such officers are to be elected. The election must 
take place within twenty days from the posting of the no¬ 
tices. 10 

When an application signed by one-third of the legal 
voters of any incorporated town is presented to the town 
board of trustees in writing asking for a dissolution of the 
corporation and setting forth the reasons therefor, it is 
competent for the board, if they deem the reasons good, 
to call a meeting of the voters of the town by giving ten 
days notice, to determine whether the town shall be dis¬ 
solved. The board of trustees preside at the election 
which is held at this meeting. 

If a majority of all the votes cast are in favor of dis¬ 
solution, provided that two-fifths of the legal voters of the 
town have taken part in the election, a statement of the 
vote, signed by the president of the board of trustees and 
attested by the clerk, shall be filed with the county clerk 


Tbid. Sec. 671. 

Tb'id. 

W R. L. 1910. Sees. 672 and 673. 



554 


Government of Oklahoma 


(formerly register of deeds). Six months from the time 
when this statement is filed the town ceases to be a cor¬ 
poration. Any property belonging to the corporation, 
after the payment of the debts and liabilities, is disposed 
of in such manner as the majority of the voters of the 
(Community at a special meeting may direct. 11 

Additions to incorporated towns are made in one of 
'two ways: First, when individuals wish to have their pro¬ 
perty adjoining the town included in the town. When¬ 
ever lots adjoining the town are laid off and platted and a 
record is made with the county clerk, the trustees of the 
(town may by resolution extend the boundary so as to in¬ 
clude such lots. Immediately after passing the resolution 
the trustees file a copy of it, together with a plat and map 
of the addition, in the office of the county clerk. These 
lots thereafter form a part of the town. 12 Second, when 
the town itself desires to annex contiguous territory that 
has not been platted or laid out or recorded. In such 
case the trustees present to the board of county commis¬ 
sioners a petition setting forth the reasons for such 
annexation, accompanying it with a map or plat describing 
the tract which they wish to incorporate, verified by affi¬ 
davit. Upon receipt of the petition the board of county 
commissioners gives thirty days notice of a hearing in a 
newspaper in the town, in the county in case there is no 
paper in the town, or, if there is no newspaper in the 
county, posts such notice in five or more public places 
within the corporation, and serves the notice on the owner 
or owners of the territory to be included in the corpora¬ 
tion, provided that said owners are known and are resi¬ 
dents of the county. At this hearing testimony is heard 
both for and against such annexation. If, after inspec- 


12 


‘Ibid. Sec. 674. 

3 R. L. Oklia, 1910, Sec. 718. 



Municipal Organization 


555 


tion of the map and the hearing of testimony the commis¬ 
sioners are convinced that the petition should be granted, 
they make an entry on the order book specifying the 
territory to be annexed, and describing its boundaries ac¬ 
cording to survey. This entry, or an attested copy of it, 
becomes conclusive evidence in the courts of such annexa¬ 
tion. 1 " 

The governing body of such a town is the board of 
trustees, who elect a president from among their own 
number. They form a body politic and corporate, 14 and 
are given detailed powers covering quite a wide range. 15 

The other officers of the town include the justice of the 
peace, the town marshal, town treasurer, town clerk, de¬ 
puty marshals, and fire wardens. Their duties are pre¬ 
scribed by law, while their salaries are determined upon 
by the board of trustees in their by-laws. 16 

CITIES UNDER LEGISLATIVE ORGANIZATION 

The next class of municipal organizations in the state 
of Oklahoma are called cities. Any town, village or 
community of people residing in a compact form in the 
state, having a population of two thousand inhabitants 
or more, as shown by the last federal census, and having 
its territory platted into lots and blocks, may become a 
city. 17 

In order to become a city the following procedure is 
required: A petition to this effect, signed by thirty-five 
per cent of the qualified electors, as shown by the last pre¬ 
ceding general election, residing in the territorial limits of 
any town, village or community which has reached the 

13 Ibid, Sec. 719-720. 

14 Ibid, Secs 677-678. 

,s For their general grant of powers, see It. L. 1910, Secs. 680-681. 

,0 R. L. Okla. 1910. Sees. 701-709. 

"Ibid. See. 526. 




556 


Government of Oklahoma 


requisite size, shall be filed with the governor of the state. 
Each separate sheet of the petition must be authenticated 
by the affidavit of at least one credible witness that the 
signatures are true and genuine, and that the signers are 
aualified electors within such community. Within thir¬ 
ty days from the filing of such a petition the governor is¬ 
sues a proclamation calling an election to decide whether 
the community shall become a city, which is published in 
a newspaper of general circulation in the community in 
which the election is to be held for a period of at least 
twenty days prior to the election. It is the duty of the 
governor in the proclamation to establish as many polling 
places in each city as he deems necessary, to divide the 
proposed city into four temporary wards, and to appoint 
three judges and two clerks of election for each polling 
place. Not more than a majority of these election offi¬ 
cers may be of one political party. 18 These elections are 
conducted as nearly as may be, in accordance with the 
state election laws. All persons who have resided for 
thirty days next preceding such election, in the ward or 
precinct, and who are qualified electors of the state and 
of the county in which the town is situated, are qualified 
to vote at this election. 

If the community wishes, at the same time that it votes 
upon the question of becoming a city, to frame its own 
charter, a board of freeholders is chosen at this election 
to prepare a charter. In case the proposed city wishes to 
remain under the organization laid down by the legisla¬ 
ture, it votes at this same election for the city officers, 
consisting of a mayor, city clerk, police judge, city treas¬ 
urer, city attorney, a marshal, who shall be chief of po¬ 
lice, city assessor, street commissioner, treasurer of the 


’Ibid. Sec. 527. 



Municipal Organizations 


557 


school board, two members of the school board and two 
councilmen from each ward / 9 

The county election board of the county in which the 
election is held acts as the canvassing board for such elec¬ 
tions. It meets on the first Friday after the election to 
canvass the vote. The result of the vote upon the ques¬ 
tion of incorporation as a city is spread upon the journals 
of the board; and if the vote has been favorable, the can¬ 
didates for the various offices who have received the high¬ 
est number of votes are declared elected. 

The county clerk, within five days after the canvass of 
the returns of the election, certifies to the governor 
whether or not the community has voted favorably upon 
whether it wishes to become a city . 20 If a majority of the 
votes cast at the election are in favor of the proposition, 
the governor shall within twenty days, issue a proclama¬ 
tion declaring such a municipality to be a city . 21 

The community thereupon becomes a city and as such 
is subject to the general laws of the state governing cities. 
The statutes lay down in some detail the powers and dut¬ 
ies of municipal officers, in addition to determining who 
the officers shall be. 

The mayor presides at all meetings of the city council, 
where he has the right to cast a vote in case the council 
is evenly divided. He has the “superintending control of 
all the officers and affairs of the city”, and shall take care 
that the ordinances of the city and the provisions of the 
state laws are complied with. 22 He signs the commissions 
and appointments of all elected ancl appointed officers 
and endorses all official bonds approved by the mayor and 


19 R. L. Okla. 1910, Sec. 530. 
W R. L. Okla. 1910, Sec. 532. 
21 Ibid. Sec. 532. 

22 Ibid. Sec. 560. 



558 


Government of Oklahoma 


council ." 3 He signs all orders and warrants drawn upon 
the treasurer for money, and may require the city clerk 
to attest the same and to keep proper records . 24 The 
mayor has power to veto any ordinance passed by the 
council, with the proviso that any ordinance may be 
passed over his veto by a two-thirds vote of all the mem¬ 
bers of the city council. In case the mayor neglects or re¬ 
fuses to sign any ordinance or to return the same with his 
objections in writing at the next regular meeting of the 
council, the ordinance becomes effective without his sig¬ 
nature . 28 

The mayor communicates to the council from time to 
time such information as he deems they should have, and 
also recommends such measures as in his opinion will 
make for the well-being of the city . 20 He has the power 
and it is made his duty to enforce ordinances, and he is 
charged with the responsibility of seeing that officers 
who violate or neglect their duties are dealt with promptly. 
He is also given such jurisdiction as may be vested in him 
by ordinance over places within five miles of the corpor¬ 
ate limits of the city for the enforcement of any health, 
quarantine, cemetery or waterworks ordinance or for the 
regulation thereof . 27 He may also call upon citizens to 
vaid in enforcing the law.* * 

He has the power of remitting fines and foreitures, and 
of granting reprieves and pardons for offenses arising 
under the ordinances of the city, by and with the consent 
of the council. No fine or forfeiture may be remitted or 
pardon granted, however, except at a session of the coun- 

“Ibid. Sec. 561. 

M Il>id. Sec. 562. 

25 Ibid. Sec. 563. 

"‘Ibid. Sec. 564. 

"Ibid. Sec. 566. 

*md. Sec. 567. 



Municipal Organization 


559 


cil, nor unless the reasons therefor, together with the ord¬ 
er of remission or pardon, be entered upon the journal by 
the clerk. He has power to suspend all city officers 
against whom charges of incompetency or dereliction of 
duty are preferred, until such time as the mayor and coun¬ 
cil can act upon the case . 29 

The mayor appoints, with the consent of the council, an 
assistant city marshal, a city engineer, a city physician, 
and such policemen and other officers as the mayor and 
council majr deem necessary . 30 

When any vacancy shall happen in the office of mayor, 
'the president of the city council assumes the duties of 
mayor temporarily and his compensation for such services 
is the same pay that the mayor receives. In case a va¬ 
cancy occurs in the office of mayor, more than ninety days 
prior to the next election, the person acting as mayor 
causes a special election to be held to fill the vacancy, 
giving ten days notice by proclamation . 31 

The city council and the mayor act as the legislative au¬ 
thority of the city. They hold regular meetings not less 
than once a month, as shall be prescribed by ordinance. 
Special meetings may be called by the mayor or acting 
mayor, upon request or notice, in writing, signed by least 
three members of the council, specifying the object and 
purpose of the meeting. This request or notice is read at 
the meeting of the council and entered at length upon the 
journal. No business may be transacted at the meeting 
except that specified in the notice. A majority of the 
elected councilmen are necessary to constitute a quorum 
to do business, but a smaller number may adjourn from 


’“’Ibid. Sec. 568. 
30 IMd. Sec. 570. 
3 Tbid. Sec. 569. 



560 


Government of Oklahoma 


day to day and require the attendance of absent mem¬ 
bers . 33 

The council has general powers of making ordinances 
and is vested with the control and management of munici¬ 
pal finances. It may divide the city into not less than 
four wards. The council has powers to provide for 
streets, avenues, lanes and alleys, and to make sidewalks 
and build bridges, culverts and sewers within the city. It 
may enact ordinances for the purpose of planting, main¬ 
taining and protecting shade trees. For the carrying on 
of all these purposes it has the power of making assess¬ 
ments, subject to certain restrictions that are imposed by 
law. The council may provide for making improvements 
of a general nature, including street intersections, and 
may in order to pay for them borrow money and issue ne¬ 
gotiable bonds . 33 

The law lays down in detail the procedure to be fol¬ 
lowed both as to sewers and as to street improvements. 

Certain financial limitations, other than those arising 
from the vesting of powers in the county excise board 
described previously, are laid down by law. Thus, 
the mayor and council have “no power to appropriate or 
issue any scrip, or draw any order appropriated by ordin¬ 
ance, or ordered in pursuance of some object provided by 
law * * *” No ordinance providing for the borrowing 
of moneys or appropriating money is valid unless a ma¬ 
jority of all the councilmen elected vote in favor of it. 
Such vote is taken by yeas and nays, and must be entered 
upon the record of the proceedings of the council . 84 

The law lays down in detail the manner in which claims 

"Ibid. Sec. 571. 

"Ibid. Secs. 572-575. For the details in respect to sewers 
see R. L. 1910 Chap. 10, Art. Ill; for details in respect to street 
improvements see R. L. 1910 Chap. 10 Art. XII. 

M R. L. Okla. 1910, Sec. 577. 



Municipal Organizations 


561 


against the city shall be presented . 35 The city council can 
•make no contract for any public work or improvement 
without first having secured an estimate of the cost of 
such an undertaking from the city engineer. No con¬ 
tract can be entered into by the council for any work or 
improvement for a total price exceeding the aggregate 
amount of this estimate . 36 

A limitation is placed by law upon the annual expendi¬ 
tures that the city can make. The statute provides, “It 
shall be unlawful for any city council to issue any certifi¬ 
cate of indebtedness in any form, in payment of or repre¬ 
senting or acknowledging any account, claim or indebt¬ 
edness against the city, in excess of eighty per cent of the 
^amount levied.” In case such a certificate of indebted¬ 
ness is issued or in case indebtedness is contracted in ex¬ 
cess of this amount, it becomes not a liability of the city 
but of the mayor or members of the council incurring it, 
unless there is cash in the treasury to pay such an obliga¬ 
tion. Any warrants drawn in excess of eighty per cent 
of the amount levied for the current year, when the cash 
is not in the treasury to pay it, are not a charge against 
the city but against the mayor and the members of the 
council . 37 The constitution provides that a city may not 
levy over a ten mill tax in any one year . 36 The legislature 
has further limited the towns and cities of the state in 
this respect by providing that they cannot levy more than 
six mills . 39 

The council is required to publish quarterly, in each 
(year, a full and detailed statement of the receipts, ex- 


35 R. L. Okla. 1910 Sec. 603. 
"Tbid. Sec. 602. 

37| Kbid. Sec. 607. 

"‘Const. Art. X., Sec. 9. 

W S. L. Okla. 1917. Ch. 262. 



562 


Government of Oklahoma 


penditures and indebtedness of the city, whicfti shall be 
printed in a newspaper located in the city . 40 

The council is given power to collect poll and license 
and occupation taxes. The poll tax must not, however, 
exceed one dollar a year on all able-bodied males between 
the ages of twenty-one and sixty years. Just what occu¬ 
pation and license taxes the city may levy and collect is 
laid down by law . 41 

The city, of course, derives the greater part of its in¬ 
come from the general property tax, from selling public 
utility services and from the state through the motor ve¬ 
hicle tax. 

The city council is given considerable police power. It 
has power to enact ordinances to "restrain, prohibit and 
suppress houses of prostitution and other disorderly 
houses and practices, games and gambling houses, and 
all kinds of public indecencies .” 42 It may also restrain 
and prohibit "riots, routs, noises, assaults, assaults and 
batteries, petty larceny, disturbances or disorderly as 
semblies, and immoral or indecent shows, exhibitions or 
concerts, in any street, house or place in the city; and to 
regulate, punish and prevent the discharge of firearms, 
rockets, powder, fireworks, or other dangerously combus¬ 
tible materials in the streets, lots, grounds, alleys, or about 
or in the vicinity of any building .” 43 The council further 
has the power to prevent stock of all kinds from running 
at large, to prevent racing or fast driving within the city, 
and to regulate streets as to use. It has large powers in 
enacting ordinances protecting the city from fire. Rules 
for the weighing and measuring of commodities sold in 
the city may also be laid down by the council. It has the 

"R. L. Okie. 19*10, Sec. 579. 

41 Ibid. Sec. 580. 

42 R. L. Olda. 1910, Sec. 583. 

"Ibid. Sec. 584. 



Municipal Organization 


563 


power to make regulations to prevent the introduction 
and spread of contagious diseases, as well as to prohibit 
the carrying of firearms or other deadly weapons. It 
may fine or set to work vagrants and persons found in the 
city “without visible means of support or some legitimate 
business.” Power is given to the council also to regulate 
railways, railway terminals, storage places, railway 
tracks, crossings, etc., and to prescribe regulations for the 
running of railway engines, cars and trucks within the 
city limits . 44 

Under the constitution, as we have seen, the city has 
the power to establish and operate public utilities. By 
law 45 it is given the power to purchase or condemn land 
for city purposes, to erect and establish market places, 4 " 
water supplies , 47 libraries 45 and reading rooms, and to 
make provision for the supply of electric lights . 49 

HOME RULE CITIES 

The third class of cities in the state consists of cities 
of more than two thousand which are not organized un¬ 
der the general state laws but which have established 
their own charters in conformity with the power given 
them by the constitution 59 . 

Such cities determine their own organization and also 
by charter outline their duties and responsibilities, sub¬ 
ject to the limitations placed upon them by the constitu¬ 
tion and the general laws of the state. These cities are 
familiarly known as home rule cities. So far, nearly all 
the cities of more than two thousand have availed them- 


“Ibid. Secs. 583-598. 

40 Ibid. Sec. 594. 

“Ibid. Sec. 590. 

“ibid. Sec. 592. 

“Ibid. Sec. 600. 

“Ibid. Sec. 593. 

“Court., Art. XVIII, Sec. 3 



564 


Government of Oklahoma 


selves of this privilege and have adopted their own chart¬ 
ers. These charters show great variation in respect to 
the type of organization adopted, the powers and duties 
of the city, and also in respect to their conformity to what 
the courts have held to be general laws taking precedence 
over city charters. 

Generally speaking, the home rule cities have adopted 
one of three forms of government—the mayor-council 
form, the commission form, and the city manager form. 
The details regarding the methods of organizing these 
cities are found in the next chapter. Since these forms 
are familiar to all students of government, they will not 
be discussed here. 

What powers chartered cities have and do not have is 
a very difficult question to answer. The relationship be¬ 
tween city and state is greatly complicated by the grant 
of home rule. In view of the complexity of this problem 
and also its importance to those interested in municipal 
government it has been considered advisable to discuss it at 
some length in the following chapter. 


CHAPTER XXI 


THE LEGAL RELATIONSHIP OF THE CITY TO THE 
STATE. 

In order to get as clear an idea as possible of the re¬ 
lationship which the cities of Oklahoma bear to the state 
it may be well to summarize the ordinary position of an 
American city in this respect. A city is a municipal cor¬ 
poration, created by the state under its reserved rights of 
sovereignty for the purpose of carrying out certain state 
activities and also for meeting certain local needs. Like 
any other corporation, it derives all its powers from the 
state and is a body of enumerated, rather than general pow¬ 
ers. Consequently, it is entirely subordinate in all of its 
activities to the state, for which it acts only as an agent 
Since this is so, in the absence of constitutional provis¬ 
ions, it is under the complete control of the legislature 1 . 
The legislature may enlarge or diminish its area, may de¬ 
termine what system of government it shall have, may de¬ 
termine the method to be followed in organizing this gov¬ 
ernment, may say what officers it shall have, how they 
shall be elected, what their functions may be, and may 
determine the sphere of activity of the city and impose 
such restrictions upon it as it sees fit. 

Upon this supremacy there are two important classes 
of limitations. The first of these is found in the limita¬ 
tions whidh are placed upon the state and consequently 
upon its legislature by the national constitution. It is 
not necessary for the purpose of this chapter, however, 
to discuss these limitations. The second, and by far the 

’Dillion, Municipal Corporations, Sec. 98 (5th. Ed.) : McBain, The 
Law and Practice of Municipal Home Rule, pp. 12-17. 

(565) 



566 


Government of Oklahoma 


Tnost important class of limitations upon the control of 
the legislature over cities, is found in the state constitu¬ 
tions themselves. Through the limitations placed upon 
the legislature by the Oklahoma constitution, the ordin¬ 
ary relationship existing between the city and the state is 
profoundly changed. 

The first of these limitations is found in a provision of 
the consitution which prohibits the legislature from es¬ 
tablishing cities by special acts and requires that it “pro¬ 
vide for the incorporation and organization of cities and 
towns and the classification of the same in proportion to 
population * * * 2 ” The legislature is further limited even 
in respect to the; organization and classification of cities 
through general laws, by the constitutional provisions 
which we shall discuss in detail later, granting the right 
of home rule to cities of more than two thousand popu¬ 
lation. 

The constitution guarantees the right of the initiative 
and referendum to the people of every municipal corpor¬ 
ation with reference to all legislative authority which it 
may exercise and to all amendments which it may wish 
to make to the charter 3 . 

By Sec. 6 of Art, XVII of the constitution, the power 
of the legislature to prevent cities from engaging in the 
ownership and operation of public utilities is taken away 
by implication. This section provides that any municipal 
corporation in the state has the right to engage in “any 
business or enterprise which may be engaged in by a per¬ 
son, firm or corporation by virtue of a franchise from said 
corporation.” 

The legislature is prohibited from “granting the right 
to construct and operate a street railroad within any city, 

3 Art XVIII, Sec. 1. Const. 

’Art. XVIII. Sec. 4a. 



Relation of City to State 


567 


town, or village, or upon any public highway, without 
first acquiring the consent of the local authorities having 
control of the street or highway proposed to be occupied 
by such street railroad 4 .” 

Several provisions limiting the financial control over 
cities by the legislature are found in the constitution. 
The legislature is forbidden to “impose taxes for the pur¬ 
pose of” any municipal corporation, but may by general 
laws confer on the proper authorities thereof the power 
to collect and assess taxes 5 . The provision of the consti¬ 
tution declaring that no city or town may levy over ten 
mills tax on an ad valorem basis except for public build¬ 
ings acts indirectly as a limitation upon the legislature, 
since it cannot authorize a greater levy 6 . 

The legislature except as provided for in the constitu¬ 
tion, is prohibited from passing any local or special laws 
covering several classes of things. Among such prohib¬ 
itions affecting cities and towns are the following: 

Prohibiting the legislature from “authorizing the lay¬ 
ing out, opening, altering, or maintaining of roads, high¬ 
ways, streets or alleys 7 .” 

“Vacating roads, town plats, streets or alleys 8 .” 

“Incorporating cities, towns or villages, or changing 
the charters 9 .” 

“Creating offices, or prescribing the powers and duties 
of officers, in counties, cities, towns, election or school 
districts 16 .” 

The legislature is further prohibited from extinguidh^ 


* Art. 

IX. 

Sec 

. 10, 

Const. 

5 Art. 

X. 

Sec. 

20. 

Const. 

fl Art. 

X. 

Sec. 

9-10, 

Const. 

7 Art. 

Tbid. 

Tbid. 

J Tbid. 

V.. 

Sec. 

46, 

Const. 



568 


Government of Oklahoma 


ing or releasing “in whole or in part, the indebtedness, 
liabilities, or obligations of any corporation or individual, 
to this State, or any county or other municipal corpora¬ 
tion thereof 1 V , 

By far the most important limitation upon the legisla¬ 
ture in respect to cities is found in the so-called “Home- 
Rule” provision of the constitution. This provides as 
follows: 

“Art. XVIII. Sec. 3 (a) Charters. Any city containing 
a population of more than two thousand inhabitants may 
frame a charter for its own government consistent with 
and subject to the Constitution and laws of this State, by 
causing a board of freeholders composed of two from 
each ward, who shall be qualified electors of said city, 
to be elected by the qualified electors of said city, at any 
general or special election, whose duty it shall be, within 
ninety days after such election, to prepare and propose a 
charter for such city, which shall be signed in duplicate 
by the members of such board or a majority of them, and 
returned, one copy of said charter to the chief executive 
officer of such city, and the other to the Register of Deeds 
of the county in which said city shall be situated. Such 
proposed charter shall then be published in one or more 
newspapers published and of general circulation within 
said city, for at least twenty-one days, if in a daily paper, 
or in three consecutive issues, if in a weekly paper, and 
the first publication shall be <made within twenty days 
after the completion of the charter; and within thirty 
days, and not earlier than twenty days after such publi¬ 
cation, it shall be submitted to the qualified electors of 
said city at a general or special election, and if a major¬ 
ity of such qualified electors voting thereon shall ratify 
the same, it shall thereafter be submitted to the Governor 


'Art. V., Sec. 53, Const. 



Relation of City to State 


569 


for his approval, and the Governor shall approve the 
same if it shall not be in conflict with the Constitution 
and laws of this State. Upon such approval it shall be¬ 
come the organic law of such city and supersede any ex¬ 
isting charter and all amendments thereof, and all ordin¬ 
ances inconsistent with it. A copy of such charter, cer¬ 
tified by the chief executive officer, and authenticated by 
the seal of such city, setting forth the submission of such 
charter to the electors and its ratification by them shall, 
after the approval of such charter by the Governor, be 
made in duplicate and deposited, one in the office of the 
Secretary of State, and the other, after being recorded 
in the office of said Register of Deeds, shall be deposited 
in the archives of the city; and thereafter all courts shall 
take judicial notice of said charter. The charter so rat¬ 
ified may be amended by proposals therefor, submitted 
by the legislative authority of the city to the qualified 
electors thereof (or by petition as hereinafter provided) 
at a general or special election, and ratified by a major¬ 
ity of the qualified electors voting thereon, and approved 
by the Governor as herein provided for tlhe approval of 
the charter. 

Sec. 3 (b) An election of such board of free-holders 
may be called at any time by the legislative authority of 
any such city, and such election shall be called by the 
chief executive officer of any such city within ten days 
after there shall have been filed with him a petition de¬ 
manding the same, signed by a number of qualified elec¬ 
tors residing within such city, equal to twenty-five per 
centum of the total number of votes cast at the next pre¬ 
ceding general municipal election; and such election shall 
be held not later than thirty days after the call therefor. 
At such election a vote shall be taken upon the question 
of whether or not further proceedings toward adopting a 


570 


Government of Oklahoma 


charter shall be had in pursuance to the call, and unless 
a majority of the qualified electors voting thereon shall 
vote to proceed further, no further proceeding shall be 
had, and all proceedings up to that time shall be of no 
effect.” 

'This provision not only places great limitations upon the 
legislature, but also determines fundamentally the relations 
existing between the city and the state. 

In the first place, it virtually divides the municipalities 
of the state into great groups, viz.: Those of under 
two thousand population, which do not have the right to 
frame their own charters; and those of over* two thousand 
population, known as cities of the first class, which have 
such a right. 

Over those cities which (have exercised the right to 
frame their own charters the legislature has very much 
less control, as we shall see, than over smaller municipali¬ 
ties, or cities of the first class, which have not exercised this 
right. Over all except home rule cities, the legislature 
has complete control, subject only to the restrictions found 
in the constitution, most of which we have already enum¬ 
erated. 

Acting under the ordinary powers of a state legisla¬ 
ture in the absence of constitutional limitations covering 
these points 12 , the legislature can determine by general 
laws the organization, powers and liabilities of cities, can 
determine the powers of their officers, and in any other 
way not expressly prohibited by the constitution can 
provide for their government. It also has the power to 
classify them as it sees fit, giving different duties, powers, 
etc., to different classes 18 . 

12 Munro, W. B-, The Government of American Cities, third edition, 
1921, p. 53. 

,3 Art. XVIII. Sec. 1. Const. 



Relation op City to State 


571 


The position of the cities which have framed their own 
charters is very different. The control of the legislature 
over them is decidedly limited. Just how far the legis¬ 
lature may exercise control over them, however, cannot 
easily be determined. The clause in the constitution pro¬ 
viding that the charter shall be “consistent with and 
subject to the constitution and laws of this State,” lays 
down no rule for determining how far the city can go in 
providing for its own government without its charter's 
being inconsistent and in conflict with the state law. 

The constitution does not, as in some states, California 
and Colorado for instance, enumerate, after the general 
grant of home rule, specific powers which the city may ex¬ 
exercise. The result of this is that many questions have 
arisen not only concerning the competency of the city to 
perform certain functions but also concerning the com¬ 
petency of the city as opposed to the competency of the 
legislature. The first state legislature attempted in a 
measure to remedy this defect, after rewriting into the 
law the constitutional provisions regarding home rule, 
by declaring: 

“When a charter for any city of this State shall have 
been framed, adopted and approved according to the 
provisions of this article, and any provisions of such 
charter shall be in conflict with any law or laws relating 
to cities in force at the time of the adoption and approval 
of such charter, the provisions of such charter shall pre¬ 
vail and be in full force, notwithstanding such conflict, 
and shall operate as a repeal or suspension of such state 
law or laws to the extent of such conflict; and such state 
law or laws shall not thereafter be operative in so far as 
they are in conflict with such charter; Provided, that 
such charter shall be consistent with and subject to the 


‘R. Tj. Okla. 1910, Sec. 530. 



572 


Government of Oklahoma 


provisions of the Constitution, and not in conflict with 
the provisions of the Constitution, and laws relating to 
the exercise of the initiative and referendum, and other 
general laws of the State not relative to cities of the first 
class.” 

This legislative provision, however, only gave very part¬ 
ial interpretation to the uncertain requirements of the 
constitution, with the result that the problem of the re¬ 
lationship of a chartered city to the state has been thrown 
into tlhe courts. In order to determine the competency 
of a home rule city in Oklahoma, therefore, it becomes 
necessary to review a great many court decisions dealing 
with the subject. In general, the courts have interpreted 
the constitution and the above-quoted statute to mean 
that whatever is of purely local concern the city has com¬ 
plete power to regulate by charter provisions. “It has 
been the uniform holding of the Court that city charters 
, become the organic law of the municipality, and super¬ 
sede the laws of the state in conflict therewith in so far 
as they attempt to regulate purely municipal matters 15 .” 
Any matter, however, which concerns the state as a 
whole, is controlled by state law and cannot be controlled 
by charter provisions; or, to put it in another way, the 
home rule charter must be consistent with and subject 
to state laws generally applicable to the state as a whole, 
and which do not relate to purely local or municipal af¬ 
fairs. 16 

Such criteria are entirely too general to furnish any 
adequate understanding of the position of the home rule 
city in the state; and it will be necessary, therefore, to 
discuss what has been held in individual cases covering 
various aspects of the problem. 

“Walton v. Donnelly, 1921; 201 Pac. 367. 

“See Lackey v. State, Ex rel. Grant, 29 Okla. 255: 116 Pac. 913. 


Relation op City to State 


573 


The scope of a home rule city’s powers presents itself 
in two different connections. In its simplest form it is 
merely a question of whether or not a city may exercise 
certain powers and functions. More frequently, howev¬ 
er, there is a question as to superiority or inferiority 
between a charter provision and a state law. As Dr. 
McBain puts it, “In this form the question is no longer 
merely as to the competence of the city. It concerns the 
competence of the city in relation to tihe competence of 
the state legislature. Whether the question of the scope 
of home rule powers is offered in one or the other of these 
forms depends usually upon whether the state legislature 
has or has not acted in respect to the subject-matter un¬ 
der consideration 17 .” While theoretically, then, these 
two phases of the subject should be discussed separately, 
it is in practice difficult to separate them without redis¬ 
cussing several cases in which both questions have been 
raised. Both these phases, therefore, will be discussed 
more or less together. 

The questions which have arisen in Oklahoma up to the 
present time regarding the competency of home rule cities 
are: 

1. Can a city control its own procedure in respect to 
adoption and amendment of its charter? 

2. Can a city determine its own organization? 

3. Can a city enact its own primary election laws? 

4. Can a city control its own election system? 

5. Are the inititative and referendum mandatory in 
cities having their own charters? 

6. Has a city power to impose qualifications for mun¬ 
icipal suffrage? 

7. Can a city levy, assess and collect its own taxes? 


'Municipal Home Rule, p. 670. 



574 


Government of Oklahoma 


8. Does a state law control charter provisions in re¬ 
spect to the tax levy? 

9. Does a state law control charter provisions in re¬ 
spect to issuance of bonds? 

10. Has a city the right to provide for the sale of 
public property? 

11. May a city organize its own court? 

12. Does a city have the right to enforce municipal or¬ 
dinances by fines and imprisonment? 

13. Does a city have the right to acquire a public 
utility ? 

14. May a city regulate public utilities? 

15. May a city determine upon its own educational 
system ? 

16. Does a state law control charter provisions in re¬ 
spect to health? 

17. Does a state law control charter provisions in re¬ 
spect to highways and pavement? 

18. Does a state law control the organization and 
control of fire departments? 

19. Does a state law control municipal ordinances re¬ 
garding weights and measures? 

I 20. Does a state law control charter provisions in re¬ 
spect to the licensing of pool halls? 

21. Does a state law control the hours and wages of 
laborers employed by the city? 

We shall proceed to consider the court decisions upon 
these questions in the order in which they have been enum¬ 
erated. 

1. Can a city control its own procedure in respect to 
the adoption and amendment of its charter? 

The constitution, although outlining in considerable 
detail the procedure to be followed in the adoption of a 


Relation of City to State 


575 


charter, did not explicitly provide by whom a proposed 
charter should be submitted to the qualified electors of 
the city. It is also silent as to who should fix a date up¬ 
on which the election for adoption or rejection of the 
charter should be held. In the case of Reardon vs. 
Scales'", a board of freeholders in Oklahoma City had 
enacted an election ordinance providing that the charter 
which they had framed should be submitted at a special 
election. It further provided that a primary election should 
be held for the nomination of officers under the charter at a 
date preceding the charter election. The court declared 
that the ordinance enacted by the board of freeholders 
was void; since the constitution provided that an elec¬ 
tion of freeholders might be called by the legislative au¬ 
thority of the city, it was clearly implied that the charter 
also should be submitted to the voters at an election de¬ 
termined upon by the legislative authority. That is, the 
court decided that the constitutional provisions as to the 
adoption of a city charter are self-executing in spite of 
the fact that a part of the procedure was omitted. This 
decision stands for the proposition, therefore, that a city 
cannot control its own procedure in the adoption of a 
charter. In the case of Stearns vs. State, ex rel. Biggers 19 
the court receded somewhat from its position in the Rear¬ 
don case, that the constitution is entirely self executing 
in regard to the framing of a city charter. In this case, 
which involved the question as to whether or not the coun¬ 
cil and mayor could be mandamused to reconvene as a 
canvassing board, to recanvass the votes cast on the adop¬ 
tion of the new charter, it 1 was pointed out that the con¬ 
stitution is manifestly silent as to recanvassing of votes in 
a contested election. No provision, furthermore, was to 
be found in the statutes of the state covering this sub- 

“21 Okla. 683, 97 Pac. 584. 

,a 23 Okla. 462, 100 Pac. 909. 


576 


Government of Oklahoma 


ject. The court declared therefore that “If no other rem¬ 
edy exists by which it may be ascertained whether frauds 
are committed in the holding of this election, the legis¬ 
lative department of the state should be appealed to to 
provide such a remedy.” Thus the court clearly implied 
that the state laws, rather than charter provisions, were 
to supplement the constitutional provisions pertaining to 
procedure for adopting charters and amendments thereto; 
or, to put it in another way, in case the constitution does 
not fully provide for the procedure necessary for adopt¬ 
ing charters and amendments it is the state legislature 
which must supply this lack and not the city. 

2. Can a city determine its own organization? 

This question arose for the first time in tlhe case of 
Lackey vs. State, ex rel Grant 20 . In this case the ques¬ 
tion involved was whether or not existing statutes appli¬ 
cable to cities of the first class were to take precedence 
over freeholders, charters in respect to city organization. 
The statute in question (Wilson's Kevised and Annotated 
Statutes 1903—Sec. 348-353) provided that the powers 
of cities of the first class should be exercised by a mayor 
and council, and that the council should be elected from 
wards. The freeholders’ charter vested the power of 
the city in a commission of five members who were to be 
elected at large. After considerable interesting discus¬ 
sion, which we do not have space to give here, the court 
decided that what form of government a city should have 
was a matter of purely municipal concern. “It in no 
manner,” the court said, “interferes with or infringes up¬ 
on matters of the state at large, or affects its people gen¬ 
erally; and, in the absence of such provision of the chart¬ 
er being in conflict with any provision of the constitu¬ 
tion, it supersedes the statute.” In the case of Adler vs. 


“29 Okla. 255, 116 Pac. 013. 



Relation of City to State 


577 


Jenkins' 1 , the court held that the regulation of the manner 
in which a municipal officer should be chosen was purely 
a local matter and that in consequence the provision in 
the Guthrie charter providing for the appointment of a 
city treasurer by the mayor supersedes a state law requir¬ 
ing that officer to be elected in cities of the first class. In 
Bridgeman vs. Roberts 22 , it was held that the city of Ard¬ 
more by an amendment to its charter could reduce the 
salary of the incumbent commissioners from $600.00 per 
year to a stipend of $2.00 per meeting, despite a state 
law which provided that “in no case shall the salary or 
emolument of any public official be changed after his 
election or appointment.” 

From the decisions cited above, it appears that the city 
is almost supreme in respect to its organization. A city, 
then, can determine for itself what form of government it 
will have, what officers it will have to carry out the gov¬ 
ernment, what shall be their respective terms of office, 
the manner of selecting them, etc., without interference 
in any way by the state. 

3. Can a city enact its own primary laws? 

The constitution specifically provides that “The Legis¬ 
lature shall enact laws providing for a mandatory prim¬ 
ary system, which shall provide for the nomination of all 
candidates in all elections for State, District, County and 
municipal officers, for all political parties, including 
United States senators * * V’ 23 In the case of Mitchell 
vs. Carter 24 the court held that while the election of city 
officials was strictly a municipal affair and that where 
a thing was purely a municipal affair, charter provisions 

21 33 Okla. 117, 124 Pac. 29. 

23 40 Okla. 195, 139 Pac. 518. 

23 Art. ITT, Sec. 5, Const. 

2, 31 Okla. 592, 122 Pac. 691. 


578 


Government of Oklahoma 


would supersede the general laws of the state, yet they 
did not supersede the provisions of the constitution. 
Since the constitution had expressly put the duty upon the 
legislature of providing for a mandatory primary system, 
the city had no power to enact a primary system for itself, 
but must follow the state law. The court held further 
that the people of a municipality in framing their own 
charter could not possibly come within the meaning of 
the term “legislature” as used in the above article of the 
constitution. 

4. Can a city control its own election system? 

In Lackey vs. State ex rel. Grant 25 and in Mitchell vs. 
Carter, cited above, the courts (have definitely held that 
the provisions of the city charter governing elections oth¬ 
er than primary elections supersede state law upon the 
subject. In the case of Watts, Mayor, vs. State ex rel. 
Scott 36 it was held that in the manner of voting municipal 
bonds the provisions of a city charter prevail over the 
general election laws of the state. 

5. Are the initiative and referendum mandatory in 
cities having their own charters? 

The home rule provisions of the Oklahoma constitu¬ 
tion expressly provide for the exercise of the initiative 
and referendum in the amendment of freeholders’ chart¬ 
ers as well as in the enactment of municipal ordinances. 
Guthrie’s home rule charter of 1911 failed to provide 
specifically for the use of the initiative and referendum 
as applied to charter amendments. The supreme court 
of the state had held that the general initiative and 
referendum provisions in the constitution were not self¬ 
executing, but that before they became effectual supple¬ 
mentary legislation would be required. In the supple- 


25 29 Okla. 255. 116 Pac. 913. 
“187 Pac. 797. 



Relation of City to State 


579 


mentary legislation provided by the legislature details 
as to the manner in which the initiative and referendum 
powers might be exercised in those cities that had failed 
to provide for the exercise of such powers by their own 
charters were laid down. In the case of Lowther vs. 
Nissley 27 the question was presented as to whether this 
statute did or did not apply to the home rule city of 
Guthrie. The court held that the statute did apply and 
that the Guthrie charter, which contained no provision 
upon this subject, might be amended by initiative and re¬ 
ferendum procedure, taken under the provisions of the 
^constitution as supplemented by a general state law. 

In the absence, therefore, of charter provisions for 
carrying out constitutional mandates relating to the city, 
state laws will govern. 

6. Has a city power to impose qualifications for muni¬ 
cipal suffrage? 

Several municipal Charters of the state require quali¬ 
fications in addition to those prescribed by the state con¬ 
stitution or state law r for voting upon local bond issues 
and other municipal questions. No voter who has not 
these additional qualifications may participate in elections 
of this kind. 

In many states where city charters are granted by the 
legislature such charters provide for qualifications in 
addition to those required by the constitution, as a pre¬ 
-requisite to voting on certain municipal questions* *. The 
rule is also well established that the legislature is com¬ 
petent to write such provisions, on the ground that it is 
only restricted by the constitutional qualifications for 
suffrage, in elections for which the constitution itself 
makes provision. Does this mean that the legislative 

”38 Okla. 797; 135 Pac. 3. 

*Cf. McBain, Municipal Home Rule, p 582 



580 


Government of Oklahoma 


'authority of the city is in the same position as the state 
legislature in respect to these added qualifications? This 
point does not seem to have been decided in the courts of 
Oklahoma. Another question which arises in this con¬ 
nection is: If the city is empowered to restrict the suff¬ 
rage, does it likewise have power to extend it? Such 
a result would seem to be logical, in view of the fact that 
in Oklahoma municipal elections have been declared to 
be matters of purely municipal concern. 

7. Can a city levy, assess, and collect its own taxes? 

In Collinsville vs. Ward 29 , and Rogers, County Treas¬ 
urer, vs. Bass & Harbour Co., 20 It was held that a 
city could levy and collect taxes for a purely munici¬ 
pal purpose, but that the state law governed all other 
taxes. In these cases as well as in Thurston, County 
Treasurer vs. Caldwell 31 , a distinction was made between 
taxes for functions in which the state has a sovereign in¬ 
terest, “such as taxation for police protection, for streets, 
highways and bridges, for the purposes of establishing 
and maintaining a public school system * * *” and taxes 
for a purpose in which the state has no sovereign interest. 
The city, said the court, could only by charter provisions 
impose taxes for the purpose of carrying out the latter 
functions. 

In the case of Bodine vs. Oklahoma City 32 the city was 
declared to be possessed of much wider power over tax¬ 
ation than these previous decisions would seem to indi¬ 
cate. In this case the charter of Oklahoma, City provided 
that the board of commissioners should prepare a budget 
and should base the annual tax levy thereon. The board 


Pac. 1145. 

30 168 Pac. 212. 

31 40 Okla. 206. 137 Pac. 683. 
32 79 Okla. 106, 187 Pac. 209. 



Relation of City to State 581 

of commissioners was then by ordinance to levy an ad 
valorem tax for all purposes. The levy of any additional 
tax was also to be made by the city commissioners. The 
various levies were then to be certified by the city clerk 
to the county clerk of Oklahoma County, who was in 
turn to place them on the tax roll for collection by the 
county treasurer. 33 

The general state law 34 provides that all municipal 
budget estimates shall be submitted to the county excise 
board. This board has the power ‘‘to revise and correct 
any estimates certified to them by either striking items 
therefrom, increasing or decreasing the items thereof, or 
adding items thereto, when in its opinion the needs of the 
municipalities shall require.” The excise board, having 
Then determined finally what the expenditure shall be, 
makes the levy. The secretary of the excise board is then 
to certify the appropriation so made to the issuing officer 
of the municipality. The several items of the estimate 
as made and approved by the excise board constitute 
definite appropriations. 

Here was manifestly a conflict between the charter pro¬ 
visions and the state law. The court, after quoting sec¬ 
tion 539 of the Revised Statutes of 1910, quoted the 
interpretation of this section given by the court in 
Lackey v. State, “It is clear that the foregoing stat¬ 
ute intends to provide that whenever a freeholders’ 
charter has been adopted under the provisions of the 
constitution, and conflicts with any law of the state 
relating to municipal matters of cities of the first 
class, the provisions of such charter shall prevail.” The 
court then declared that all the items within the budget 


■^Charter of Oklahoma City. Art. 7, Secs. 1-10. 

3 *R. L. Oklia. 1910, Sec. 7378, as amended by S. L. 1917, Ch. 226, 
Sec. 5. 



' 582 


Government of Oklahoma 


were for the purpose of carrying out municipal govern¬ 
ment, and added, “We do not believe that a proper inter¬ 
pretation of the Constitution or of Section 539 will justify 
a finding that a city is limited in its taxing power while 
acting under a charter in which its terms authorize the 
raising of revenue by ad valorem taxation, for purely mun¬ 
icipal purposes, whatever that may mean, but may include 
in its charter the power to raise by taxation revenue for 
all legitimate purposes of municipal government , subject to 
the Constitution and laws of the state.” The courts limited 
this broad statement slightly by adding, “We do not mean 
to say that the Legislature cannot regulate and control the 
manner and method of raising revenues by a city acting un¬ 
der a charter in all matters in which the state has a sover¬ 
eign interest, but will say that it has not as yet done so* * * 
And furthermore, we do not mean to say that the general 
laws of the state will not authorize the imposition of a 
tax for municipal purposes in which the state has a sov¬ 
ereign interest should a city, when its charter authorizes 
it, fail to impose such a tax.” 

What the court practically does here is to eliminate tlhe 
distinction formerly made between those functions in 
which the state has a sovereign interest and those which 
are purely local. In fact, the court says: “The opinions 
in Rogers, Treas., v. Bass & Harbour * * * and the City of 
Collinsville v. Ward * * * in so far as they may hold that 
a city operating under a charter form of government can 
only levy for purely municipal purposes , are expressly ov¬ 
erruled.” 

This decision is so inconsistent in several places that it 
is almost impossible to determine what the court means. 
If the court simply intends to say that the making of a 
budget is purely a municipal affair over which the state 
should exercise no control, or is an affair, in other words, 


Relation of City to State 


583 


which should be governed by charter provisions rather 
than state law, we can agree with the decision of the court. 
From the language used, however, the court evi¬ 
dently means much more than this. According to 
the court, the city is free from control by the state in 
respect to “all legitimate purposes of municipal govern¬ 
ment.” This interpretation of the relationship of the 
city to the state, of course, would give the city a much 
wider sphere of self determination than it would have in 
case it was only free from state interference for “purely 
municipal purposes,” the criterion usually laid down. 
Practically everything that the city does might be consid¬ 
ered a “legitimate purpose of municipal government.” 
In fact, it is virtually impossible to make a distinction be* 
tween a “legitimate purpose of municipal government” 
and a function in which the state has a “sovereign inter¬ 
est.” Are not education, health, sanitation, taxation, 
highway construction and maintenance, public utility 
regulation, in fact, all those functions in which the state 
has formerly been held to have a “sovereign interest,” 
embraced within the wide category of “legitimate pur¬ 
poses of municipal government”? If this doctrine were 
applied consistently it would revolutionize the relation¬ 
ship that home rule cities bear to the state. The city 
would become an independent principality within the 
state, subject to practically no control. 

What the court means to say by the statement that the 
legislature has not regulated and controlled “the manner 
and method of raising revenues by a city acting under a 
charter in all matters in which the State has a sovereign 
interest” is a little hard to determine, for the state cer¬ 
tainly has many laws governing finance which control 
the city; as, for instance, who shall assess property, who 
shall collect taxes, what property shall be taxed, the tax- 


584 


Government of Oklahoma 


ation of public utilities, etc. If this decision were car¬ 
ried to its logical conclusion the city would have a right 
to control all such matters. Certainly this is the farth¬ 
est that the court has ever gone in freeing the city from 
legislative control in respect to finances. If the court 
had asked itself the following questions, perhaps its de¬ 
cision would not have been so sweeping: Can the city 
classify property for purposes of taxation; may the city 
provide for the assessment of all property within the city 
by a city assessor instead of the county assessor; could 
the city require a city treasurer instead of the county 
treasurer to collect taxes? 

8. Does a state law control charter provisions in respect 
to the amount of the millage tax levy? 

The state constitution places a limitation of ten mills 
upon the rate of tax that a city may levy for current ex¬ 
penses. 35 State law, supplementing the constitution, fixes 
the limit at six mills upon the dollar of assessed valuation 
for current expenses, permitting, however, additional tax¬ 
ation for sinking funds and judgments. 36 Many of the 
cities of the state, through charter provisions, 37 have 
either prescribed a rate of levy slightly beyond this, or 
else have permitted a levy up to the constitutional limit of 
ten mills. It is a remarkable fact that the question 
whether or not such charter provisions supersede the state 
law has never been brought before the courts. It would 
seem logical to presume, however, that the courts would 
decide in favor of the city in such a case, since a levy up 


35 Const., Art. X, Sec. 9. 

3<i Bunn Supp. 1918, Sec. 7376. 

37 See for example Enid Charter of 1909, Art. V, Sec. 1; 
Ada Charter Art. V, Sec. 1; Muskogee Charter, Art. VII, Par. 97; 
Tulsa Charter, Art. II, Revenue and Taxation Sec. 1; Collinsville 
Charter, Art. XIV, Sec, 1. 



Relation of City to State 


585 


to the constitutional limit would seem to be a matter of 
purely local concern. 

9. Does a state law control charter provisions in respect 
to the issuing of bonds? 

In the case of In re Bonds of City of Tulsa, 38 the 
question arose as to whether it was necessary for the at¬ 
torney general, acting as bond commissioner, to pass upon 
bonds issued under provisions of the home rule charter and 
not under any statute of the state. The court held that 
the phrase in the law that “no bond hereafter issued by 
any political or municipal subdivision of the State shall be 
valid without the certificate of said bond commissioner”, 39 
applied to cities having Ihome rule charters as well as to 
all other cities. It was held, however, in the case of the 
city of Lawton v. West, 40 that the provisions of this law do 
not apply where street improvements are to be paid for by 
special assessment. The reason for this holding is prob¬ 
ably the fact that, according to the pavement law of 
Oklahoma, only the abutting property is liable on pav¬ 
ing bonds, the city being itself in no way liable. 41 

The general laws of Oklahoma contain a number of pro¬ 
visions regarding the issuance of bonds. 42 In the case of 
Watts, Mayor, vs. State ex rel. Scott, 43 the question arose 
indirectly whether in respect to the issuance of bonds for 
public utilities to be owned and operated by the city, the 
general provisions of the state law govern, or the special 
provisions of the city charter. The court held in this case 
“That the issuance of these bonds for the purpose above 
set out was a matter of purely municipal concern, and 

S8 31 Okla. 648, 126 Pac. 555. 

39 R. L. Okla. 1910, Sec. 378. 

40 33 Okla. 395, 126 Fac. 574. 

41 R. L. Okla. 1910, Sec. 619. 

42 R. L. Okla. 1910, Secs. 458, 561, 378. Bunn Supp. 1918 Sec. 375a. 

43 77 Okla. 199', 187 Pac. 797. 



586 


Government of Oklahoma 


therefore regulated by the city charter * * *” Thi§ 
case is not at all satisfactory upon this subject, however, 
as the decision is based upon reasoning which does not 
deal directly with the real question involved. The court, 
deeming it necessary in arriving at a decision to settle the 
question whether or not any charter provisions, either 
general or special, governing the issuance of bonds, would 
take precedence of a state law, decided that they would 
do so. Probably the court would not go so far as to say 
that the charter provisions could take precedence over the 
state law in respect to the passing upon of bonds by the 
attorney general. 

Let us summarize, then, the relation of the city to the 
state in respect to the issuance of municipal bonds. 
Where bonds are issued for a purely municipal undertak¬ 
ing, charter provisions of the city will take precedence as 
to procedure, at least. Charter provisions, however, will 
not take precedence over tihe general state law requiring 
bonds to be approved by the attorney general, unless the 
city is in no way responsible for the payment of these 
bonds, as in the case of paving bonds. 

10. Has a city the right to provide for the sale of pub¬ 
lic property? 

In Owen vs. the City of Tulsa 44 it was urged that power 
to voluntarily alienate property devoted to a public use 
could not be conferred upon a city by virtue of its home 
rule charter. The Tulsa charter had expressly given such 
power to the board of city commissioners. The court 
held, however, in this case, that the acquisition and the 
alienation of property was purely a municipal affair. In 
other words, even though no power to alienate property 
had been conferred by statute, it was nevertheless em¬ 
braced within the scope of the city’s authority granted to 


“27 Olda. 204, 111 Pae. 320. 



Relation of City to State 


587 


it by the constitution. The doctrine in this case was fol¬ 
lowed in the case of Sharp vs. City of Guthrie, 45 Which in¬ 
volved a similar question. 

11. May a city organize its own courts? 

Art. VII, Sec. 1 of the constitution provides that, “The 
judicial power of this State shall be vested in the Senate, 
sitting as a court of impeachment, a supreme court, dis¬ 
trict courts, county courts, courts of justice of the peace, 
municipal courts, and such other courts, commissions, or 
boards inferior to the supreme court, as may be establish¬ 
ed by law.” The constitution itself organizes all of these 
courts to a certain extent, with the exception of the mu¬ 
nicipal courts, and defines their jurisdiction. The organ¬ 
ization of municipal courts and the definition of their jur¬ 
isdiction are evidently left to either the legislature or the 
city; or perhaps to both. Most of the cities which have 
adopted their own charters have provided for their own 
courts for trying offenses against municipal ordinances. It 
never seems to have been questioned, however, that the 
legislature could substitute its own system of courts in 
cities or determine the jurisdiction of municipal courts al¬ 
ready established by a city. As we shall see in the fol¬ 
lowing pages, this has been done on several occasions. In 
other states having home rule this power of home rule 
cities to establish police courts has sometimes been up¬ 
held, 45 but generally denied. 47 Even where this power has 
been upheld, the state law will supersede a charter pro- 

4B 49 Okla. 213, 152 Fac. 403. 

"Mo. Ex parte Kiburg, 10 Mo. App. 442, Kansas City v. 
Neal, 49 Mo. App. 72. In spite of the fact that the legislature es¬ 
tablished juvenile courts in St. Louis and Kansas City, its action 
was upheld. Ex parte Loving, 178 Mo. 194. 

"'California, See McBain, Op. Cit.. 206. 207. 214. 217. Minnesota, 
Tbid, 490-492; Texas Ibid. 654. 



588 


Government of Oklahoma 


vision in this matter. 48 

12. Is the regulation of matters pertaining to prosecu¬ 
tion for the violation of municipal charters and ordinances 
a municipal affair? 

The home rule cities of the state undoubtedly organized 
their own courts and enforced their ordinances involving 
both civil and criminal matters much as they wished, free 
from state interference, until 1915. In this year a statute 
was passed 49 which, together with amendments, court de¬ 
cisions and other statutes providing for the organization 
of municipal courts for cities of various classes, has pretty 
effectively placed the cities under staVe control. 

The first leading case involving the relationship of the 
state to the city in respect to this question was decided in 
1911. In this case 50 J. H. Simmons petitioned for a writ 
of habeas corpus in the criminal court of appeals on the 
ground that the municipal court of the city of Tulsa had 
no jurisdiction to try and to imprison him for violation of 
a municipal ordinance forbidding all persons to have pos¬ 
session of intoxicating liquors for the purpose of selling 
them. He based his contention on the ground that the or¬ 
dinance was void, because the acts alleged to have consti¬ 
tuted the offense were made public offenses under the sta¬ 
tutes and the constitution of Oklahoma, and, further, be¬ 
cause exclusive jurisdiction to try such offenses is con¬ 
ferred on the county court. 

The city of Tulsa, which passed the ordinance in ques¬ 
tion, was operating under a charter form of government. 
The question was squarely presented, then, as to whether 

‘‘Tn the absence of state law, the establishment of sneh 
courts is within the competence of the city in Missouri. This is a 
“subject upon which a state law will supersede a contrary charter 
provision/’ McBain, Municipal Home Rule, p, 197. 

49 S. L. Okla. 1915 Ch. 147. 

S0 In re Simmons, 4 Okla. Cr. 602, 112 Pac. 951. 



Relation of City to State 


589 


such a city can pass ordinances making an offense com¬ 
mitted by a person a crime against the city wlhen it is al¬ 
ready a crime against the state. 

The court held that the ordinance was valid, on the 
ground that there were really two offenses committed, 
one against the state and one against the city. The city 
had no power to enact ordinances punishing offenders 
against the general laws of the state. It did, however, 
have power to enact ordinances punishing offenses 
against the city. Tlhe court granted that under its gen¬ 
eral grant of powers the city has no right to punish for 
offenses provided for by the general laws of the state. It 
held, however, that such limitations did not apply to cities 
Organized under a charter formulated and adopted under 
the constitutional grant by the citizens of a municipality. 
“And, when a city formulates and adopts a charter under 
the constitutional provision, the municipal corporation as 
organized may be considered a separate government, in¬ 
vested with full power of local legislation under its chart¬ 
er, the same being the organic law of the corporation.” 
The court quotes with approval McQuillin, Municipal Or¬ 
dinances, par. 433 : “The police regulations of municipal 
corporations are usually enforced by ordinance. What 
police powers the local corporation may exercise, and the 
manner in which they are to be enforced, will depend upon 
its charter or legislative acts applicable, and the general 
policy of the state with respect thereto. Generally, cities 
may make and enforce within their limits all such local 
police, sanitary and other regulations designed to pro¬ 
mote the health, safety, comfort, convenience and welfare 
of the local community which are not in conflict with the 
constitution or the general laws. Crowded urban popu¬ 
lations require numerous police regulations which would 
be unreasonable in rural districts or sparsely populated 


590 


Government of Oklahoma 


territory. This difference was quickly recognized, and 
from the first establishment of local corporations, invested 
with civil government, the local community has been em¬ 
powered to enact and enforce all sorts of such regulations 
which restrict more or less the liberty of tjhe individual, 
his personal movements and the use of his property. 
These are absolutely essential to life in crowded centers. 
From the beginning their necessity has been sanctioned 
by the public authorities and they have been sustained 
generally by the courts. The police power primarily in¬ 
heres in the state; but if the state constitution does not 
forbid, the legislature may delegate a part of suclh power 
to the municipal corporations of the state, either in ex¬ 
press terms or by implication.” 

Following this and other reasoning which is not partic¬ 
ularly significant for our purpose, the court held: 
“The provisions of the charter of the city of Tulsa are 
broad enough to, and do, include the power to prohibit by 
ordinance the possession of intoxicating liquors within 
the confines of the corporation for the purpose of sale, 
barter, giving away and otherwise furnishing contrary to 
law—also power to enforce the punishment prescribed for 
violations thereof.” 

The next important question raised in the Simmons 
case is whether or not municipal courts, which operate 
without juries, can try offenses essentially criminal in na¬ 
ture under the general laws of the state. The counsel 
for the petitioner contended that he was entitled to a jury 
trial, arguing that the right of appeal to a court in which 
a jury trial may be had, does not meet the requirements 
of the constitution, that, “The right of trial by jury shall 
be and remain inviolate” 51 ; and, “In all criminal prosecu¬ 
tions the accused shall have the right to a speedy and pub- 


‘Art. II, Sec. 19. Const. 



Relation of City to State 


591 


lie trial by an impartial jury of the county in which the 
crime shall have been committed.”” 

Judge Doyle, who rendered the decision in this case, 
held that a jury trial, in the first instance, is not necessary 
in prosecutions for violations of municipal ordinances 
“enacted under the police power for the preservation of 
peace, good order, safety and health and otherwise pro¬ 
moting the general welfare within cities.” The court 
seemingly based its holding on several grounds: 

1. Summary proceedings are justifiable for violations 
of municipal ordinances, where such violations are not 
embraced in the general criminal legislation of the state. 
Since this was not a violation of state law, but of munici¬ 
pal law, summary trial was justifiable. 

2. Jury trial was only guaranteed and preserved in re¬ 
spect to those classes of cases in which it existed at the 
time of the adoption of the state constitution. The con¬ 
stitution “does not extend the right of trial by jury; it 
simply secures it in all cases in which it was a matter of 
right before.” Section 20 of the bill of rights simply “se¬ 
cures to the accused in all criminal prosecutions the right 
of trial by a jury of the county.” While it is true that a 
prosecution for a violation of a municipal ordinance 
which prohibits an act which also constitutes an offense 
under the general criminal law is a quasi-criminal pro¬ 
ceeding, at the time of the adoption of the constitution it 
was, by law, triable in a summary manner. Section 746 
of Snyder's Statutes, which were copied from the statutes 
of 1893, provided: “In all cases before the police judge 
arising under the ordinances of the city, an appeal may be 
taken by the defendant to the district court, but no such ap¬ 
peal shall be allowed unless the defendant, within ten 
days, shall enter into a recognizance with good and suffi- 


* 2 Art. II, Sec. 20, Const 



592 


Government of Oklahoma 


cient sureties, to be approved by the police judge, condi¬ 
tioned for the personal appearance of the appellant be¬ 
fore the district court of the county on the first day of the 
next term thereof.” 

3. The right of jury trial upon appeal from the mu¬ 
nicipal court of the city is free from unreasonable re¬ 
strictions and so the constitutional guarantee of trial by 
jury has not been impaired. 

It was contended by the petitioner that since the case 
was prosecuted in the name of the city of Tulsa, it was 
in violation of Sec. XIX, Art. 7, of the constitution, which 
provides, “The style of all writs and processes shall be 
"The State of Oklahoma.’ All prosecutions shall be car¬ 
ried on in the name and by the authority of the State of 
Oklahoma.” The city charter of Tulsa provided, “All 
writs, subpoenas, or other process issuing out of the city 
court shall run in the name of the City of Tulsa, and 
may be executed and served by the chief of police or his 
deputies, or policemen of said city anywhere in Tulsa 
County, Oklahoma.” The court held that this constitu¬ 
tional provision did not extend to city ordinances, and 
that the provision of the city charter was not in conflict 
with the constitutional provision. Upon a rehearing, 53 
this decision was affirmed. The decision in the Sim¬ 
mons case in respect to the power of a city to pass such 
ordinances was also affirmed in the case of Oklahoma 
City v. Spence. 84 

In 1915 85 the legislature passed an act which, after de¬ 
fining a municipal court, expressly declared proceedings 
against the violation of municipal ordinances “criminal in 
their nature;” and provided that, subject to certain speci- 

63 Ex parte Simmons, 5 Ok. Cr. 399, 115 Pac. 380. 

M 8 Okla. Or. 121, 126 Pac. 701. 

M S. L. 1915, Ch. 147. 




Relation of City to State 


593 


fic exceptions, they are to be “governed by and subject to 
general laws regulating criminal procedure.” Under 
this act the city was allowed to try cases summarily, but 
an appeal lay to the county court. 

The effect of this act is seen in the decision of Ex Parte 
Johnson, 56 which was rendered in January, 1917. In this 
case the court held that a person prosecuted under a city 
ordinance for an offense which is also made a misdemean¬ 
or by statute, or ordinance, the punishment for a violation 
of which is or may be imprisonment, is entitled to jury 
trial, in the court of original jurisdiction; and that to ac¬ 
cord to the accused the right to be tried by a jury in the 
county court on appeal, after conviction in the municipal 
court, does not satisfy the requirements of the constitu¬ 
tion in respect to jury trial, nor is it due process of law. 
Further than this, it is beyond the power of the legisla¬ 
ture to abrogate or abridge the rigiht of jury trial in crim¬ 
inal cases; and also beyond their power to confer jurisdic¬ 
tion on any tribunal to try criminal cases without provid¬ 
ing for a jury trial in the court having original jurisdic¬ 
tion. 

The court further held that the constitutional guaran¬ 
tees in respect to jury trial cannot be evaded by the nature 
of the powers vested in the municipality under its charter, 
or by the nature of the jurisdiction conferred upon the 
municipal courts. 

The Johnson decision has been followed in a number of 
similar cases involving the various cities of the state. 57 


M 13 Okla. Cr. 30; 161 Pac. 1097. 

57 Ex parte Monroe, 13 Okla. Or. 62, 162 Pac. 233; Ex parte 
Doza, 13 Okla. Or. 287, 164 Pac. 130; Ex parte Gownlock, 13 Okla. 
Cr. 293, 164 Pac. 130; Franks v. City of Muskogee, 14 Okla. Cr. 
391, 171 Pac. 492; City of Blackwell v. Burgett, 34 Okla. Cr. 682, 166 
Pac. 442; Millar v. State, 191 Pac. 1119; Ex parte King, 161 Pac. 
1102 . 



594 


Government of Oklahoma 


It was undoubtedly the 1915 law defining municipal 
courts “to mean and include all the courts of the state of 
Oklahoma, organized and existing in the various towns 
and cities thereof, which shall have and possess, under 
the laws of the state, original jurisdiction to hear and de¬ 
termine offenses against the ordinances of municipalities” 
and requiring them to be “governed by, and subject to, 
general laws relating to criminal procedure,” that made 
the court reverse the opinion which it rendered in the 
Simmons case. In fact, in the case of Ex Parte Monroe” 
Judge Brett, speaking for the court, says, “And, as has 
been said, ‘all that is required’ to solve the problem that 
has seemed to disturb some of our cities since the Tom J. 
Johnson opinion was announced, ‘is that offenses against 
the ordinances be reduced from crimes to the place they 
formerly occupied, and the place contemplated by our 
legal system.’ ” 

Almost immediately following the Johnson decision the 
legislature amended Sec. 1 of Chap. 147 of the laws of 
1915, which provides that “Such proceedings are hereby 
declared criminal in their nature; and except as other¬ 
wise specifically provided, shall be governed by, and sub¬ 
ject to, general laws relating to criminal procedure:” by 
.an act providing “that in the trial of all cases in said mu¬ 
nicipal court where the offense as defined by the city 
ordinance is punishable by a fine only, the defendant 
shall be tried without a jury, but in all cases where the 
defendant is charged with violation of a city ordinance, 
and where said offense may be punishable by imprison¬ 
ment, the defendant shall be entitled to a trial by a jury 
in the justice of the peace court within said city, or in 
the county court of said county, as the case may be.” This 

*13 Okla. Or. 62, 162 Pa<\ 233. 



Relation of City to State 


595 


jury is drawn and selected in the justice court in the same 
manner as provided by law for juries in the justice of the 
peace courts. 59 The act was entitled “An act amending 
* * * Chapter 147 of the session laws of Oklahoma, 
1915, entitled: ‘An act to regulate appeals from judg¬ 
ments of municipal courts, etc’.” 

The court has held 60 that “While this amendatory sec¬ 
tion does not in specific terms state that a violation of a 
city ordinance is criminal in nature, the declaration that 
‘Where the offense may be punished by imprisonment the 
defendant shall be entitled to a trial by jury' indicates 
that such action is criminal in its nature.” The court 
says further, “Taking into consideration the provisions 
of the Code of Criminal Procedure, together with the Con¬ 
stitution and statutory enactments relating to municipal 
courts, we cannot conceive how any action where an ac¬ 
cused will or might be subjected to imprisonment on any 
charge amounting to more than a petit offense can be any¬ 
thing but a criminal action.” 

In this case, as in others, the courts have laid down the 
rule that “the test as to whether or not the accused is en¬ 
titled to a jury trial is whether or not the punishment will 
or might be imprisonment, or a fine and costs in excess of 
$20, for the non-payment of which the accused may be 
imprisoned." 1 It is a little difficult to follow the reason¬ 
ing of the court here, particularly since it claims that the 
“dividing line between mere petit offenses that could be 
tried summarily without a jury and the graver offenses 
of a criminal character, where the accused is entitled to a 

“S. L. 1917, Ch. 127. 

*°Ex parte Johnson, 1921, 201 Pac. 533. 

"Ibid. See also Ex parte Bochmtann, 201 Pac. 537. 



596 


Government of Oklahoma 


jury,” has been fixed at a penalty of $20, including costs, 
in part by the federal constitution. 62 

In the case of Ex Parte Daugherty et al, the court has 
recently held 63 that section 1 of chap. 147 of the session 
laws of 1915 as amended by the session laws of 1917, 
above cited, providing for the trial of municipal offenses 
before a justice of the peace or the county court, is inop¬ 
erative as being in conflict with Sec. 57, Art. V Of the con¬ 
stitution, providing that every act shall embrace but one 
subject, which shall be clearly expressed by the title. 

In this case the warrant for the arrest of the defend¬ 
ants was made by the municipal police court, before 
which they appeared and pleaded not guilty. They 
thereupon demanded a trial by jury and their cause was 
remanded to the justice court, where they were tried by 
a jury of six men and found guilty, and a fine of $100 each 
and costs was assessed against them. Upon failure to pay 
the fine they were incarcerated in the city jail. They 
then sued out a writ of habeas corpus upon several 
grounds, the main ones for our purpose being that the 
subject matter treated in the act is foreign to and not ger¬ 
mane to the title of the act, that neither by its terms nor 
by implication is original or concurrent jurisdiction of 
municipal offenses conferred upon the justice of the peace 
court or the county court, and that “if it was the intent of 
the legislature, by the passage of this amendment, to pro¬ 
vide a method of taking a change of venue or transfer of 
the cause from the municipal court to a justice of the 
peace court or the county court, the statute is ineffectual 
for that purpose, because it provides no method of authen¬ 
ticating and transferring the record from one court to an¬ 
other and that it does not operate to modify or enlarge 


* a Ex parte Johnson, 201 Fac. 533. 
* 3 204 Pac. 937. 



Relation of City to State 


597 


the jurisdiction of either court.” The court upheld the 
defendants in all these contentions. 

Upon the first point the court held that by no process of 
reasoning could the first section of the act be considered 
germane to the title. 

In respect to the second point the court said: “The lang¬ 
uage of the act indicates that it was the purpose of tlhe 
legislature that in all cases where the accused could be 
tried summarily without a jury the action should be com¬ 
menced and prosecuted to final judgment before a justice 
of the peace or county court. The language of the 
amendment does not justify the conclusion that there was 
an attempt made here to authorize a change of venue from 
one court to another. If there was, we think it was an 
abortive attempt. There is no method provided for au¬ 
thenticating the record and conveying it to the justice or 
county court, as a basis for jurisdiction. Ordinarily, 
changes of venue are taken from one court or district to 
another having concurrent jurisdiction. The jurisdiction 
of these magistrates is in no sense concurrent. In cities 
having special charters, a justice of the peace or the coun¬ 
ty court is not primarily charged with or responsible for 
the enforcement of municipal regulations. Both are of¬ 
ficers of different subdivisions of tlhe state government.” 

Another difficulty with this act, according to the court, 
is the fact that jurisdiction of a justice of the peace court 
is predicated upon a verified complaint and a warrant is¬ 
sued by the justice. The appearance of the defendants 
in the justice court was not in pursuance of original pro¬ 
cess issued out of the justice court but was in pursuance of 
the conditions of the bonds exacted by the police magis¬ 
trate. 

Briefly, the decision seems to rest upon the following 
argument: municipal courts do not have concurrent juris- 


598 


Government of Oklahoma 


diction with justice of the peace courts and county courts; 
jhence change of venue from the former to the latter is not 
a part of criminal procedure. An appeal from one court 
to the other might be due process of law, but the act in 
question plainly intends to provide not an appeal, but a 
different original jurisdiction for cases where the defend¬ 
ant is entitled to jury trial. Yet the title of the act, which 
was not altered by the amending act, is '‘An act to regu¬ 
late appeals from judgments of municipal courts,” etc. 1 
This fact alone makes Sec. 1 of the act inoperative as be¬ 
ing in conflict with the constitutional provision above cit¬ 
ed that the subject of each act shall be clearly expressed 
in its title. The act is defective in other ways, such as 
failure to provide for the transfer of records. 64 

Three acts were passed by the legislature in 1919, 
which established under the guise of classification certain 
municipal courts. The first of these acts provided for 
municipal courts 65 in cities having a population of over 
10,000, in counties having a population of between 43.000 
and 47,000, as shown by the last preceding federal census 
or by any subsequent federal census. Since there is only 
one county in the state which answered this description 
according to the census reports of both 1910 and 1920, and 
only one city in that county having a population of over 
10,000—Shawnee—this act applies only to- that city.* 6 

This court was given coordinate jurisdiction in all civil 
cases of which the county court of such county would have 
jurisdiction, where the amount involved is not more than 

“Possibly the court overlooked Sec. 12 of the original act, 
which does provide for the transmission of records and documents 
from municipal courts to county courts. 

"S. L. 1919, Ch. 267. 

“Population of Pottawatomie County in 1910, 43,595. In 1920 
its population was 46,028. Shawnee is the only city in the county 
having a population anywhere near 10,000. 



Relation of City to State 


599 


$500, exclusive of interest and costs; of actions to recover 
specific personal property located in the county where 
tihe value does not exceed $500; and coordinate original 
jurisdiction with the county court and courts of justice of 
the peace in all misdemeanor cases, jurisdiction as exam¬ 
ining and committing magistrates in felony cases, and 
jurisdiction of all civil and criminal cases and matters 
which would fall within the jurisdiction of the justice of 
the peace, as well as jurisdiction of actions of forcible en¬ 
try and detainer. This court was further given exclusive 
and original jurisdiction to hear and determine all prose¬ 
cutions for violations of city ordinances. Appeals lie to 
the district or superior court. 

The second of these acts, again 61 under the guise of a 
classification of cities by population for judicial purposes, 
established a special court for tihe city of Muskogee. This 
court has similar jurisdiction to the Shawnee court in re¬ 
spect to enforcing state laws. Sec. 9 of this act provides 
that this court shall have exclusive jurisdiction over all vi¬ 
olations of the ordinances of the city in which the court 
is located, subject to the right of the defendant to appeal. 
Jurors for these courts are selected from the county. 

Chap. 199 of tihe laws of 1919 establishes municipal 
criminal courts in cities of between 50,000 and 80,000 
population. This means that there is also a special 
court for the city of Tulsa, since she is.the only city fall¬ 
ing within these population limits. This court is a court 
of record and has original jurisdiction to hear and deter¬ 
mine prosecutions in respect to violations of municipal or¬ 
dinances. It also has coordinate jurisdiction with the 
county court and courts of justice of the peace, in all 
cases wherein a violation of state statute is charged, when 


• 7 s L. 1919, Ch. 157. 



600 


Government of Oklahoma 


the offense was committed within the limits of the city. 
Jury trial is made possible in all cases, except those where 
a violation of a city ordinance is charged wherein the pen¬ 
alty does not exceed a fine of $20. In case one charged 
with a crime does not demand a jury trial, the right is 
/deemed to have been waived, and the trial is before the 
judge. 

In summarizing the foregoing paragraphs, we may note 
that: 

Three cities of the state have special courts established 
by the state legislature for the trial of offenders under 
municipal ordinances. All three of these courts provide 
for a jury trial in those cases where it has been established 
that this is necessary to due process of law, or in cases 
where the Oklahoma constitution makes jury trial obliga¬ 
tory. 

What, then, is the position of the other cities of the 
state in respect to the enforcement of municipal ordi¬ 
nances involving fine and imprisonment? 

While the decision in the Simmons case has not been 
overruled in respect to the power of the city to pass ordi¬ 
nances under its right of home rule, providing for the 
punishment of offenses also provided for by the general 
laws of the state, later decisions have decidedly limited 
this power. 

It has been held that such ordinances can only run cur¬ 
rent with and never counter to state law. The munici¬ 
pality cannot provide for summary punishment for viola¬ 
tions of its ordinances in any case where the fine exceeds 
twenty dollars, including costs; nor for any offense whose 
punishment is imprisonment. For all such offenses a jury 
trial is necessary. It is not enough that a free right of ap¬ 
peal from the municipal courts is provided; there must be 
a jury trial in the first instance. While the legislature 



Relation of City to State 


601 


undoubtedly has the power to provide that offenses 
against city ordinances criminal in nature shall not be 
tried in municipal courts, but in justice of the peace courts 
or county courts, the law by which it attempted to do so 
is unconstitutional. The cities of the state, then, with the 
exception of Shawnee, Muskogee and Tulsa, have no ma¬ 
chinery for enforcing any ordinance involving imprison¬ 
ment, or a fine of over twenty dollars, including costs. 
While the cities have large police power and can pass or¬ 
dinances involving fines and imprisonment, they are un¬ 
able at the present time to enforce them. This leaves the 
cities in a rather helpless position in respect to the suppres¬ 
sion of crime. 

What is the way out of the present difficulty? While 
the court in the case of Ex Parte Monroe suggested that 
all that is necessary to give the cities the power that they 
formerly enjoyed is to repeal the law of 1915 defining “of¬ 
fense” and declaring prosecutions of offenses punishable 
by imprisonment to be “criminal in their nature”, if one 
reads the decisions of the court with care one inclines to¬ 
ward the opinion that even with the repeal of this law, 
summary proceedings would be contrary to due process 
of law and contrary to the right of jury trial guaranteed 
by the constitution. If such is not the case, a mere repeal 
of this law wo'uld give the cities the power they formerly 
possessed. It is a nice question whether or not the deci¬ 
sion in the Daugherty case above cited will be interpreted 
as placing cities in the same position that they occupied 
before the passage of the 1915 law. 

Several arguments have been advanced both for and 
against permitting the city to impose rather severe fines 
and some little punishment for violations of municipal 
ordinances, and also to try cases summarily. We shall 
quote a few of these arguments. 


602 


Government of Oklahoma 


“Particular acts may be far more injurious, while the 
temptation to commit them may be much greater, in a 
crowded city than in the state generally. They conse¬ 
quently require more severe measures for prevention. 
State laws are, of course, for the general good, and cannot 
always answer the peculiar wants of particular localities.” 68 

“Experience has taught that discipline could not be 
maintained in the army if the law should permit * * * 
spies, and other offenders to be tried by jury. It has also 
been demonstrated that when towns become cities, lives and 
property cannot be properly safeguarded without the en¬ 
forcement of municipal ordinances in summary, or admin¬ 
istrative proceedings. Congregated in cities are the most 
virulent enemies of society, in many instances maintain¬ 
ing organizations and confederations with alibis pre¬ 
pared and planned before offenses are committed. These 
characters become known, in a general wav, to the police 
officers of the city, both by reputation and otherwise. There 
are often fifty cases, or more, of these offenders brought 
before the police court in one day, many of whose of¬ 
fenses are petty, tending more particularly to undermine 
and destroy society; a tendency which, if not strenuously 
suppressed, leads to robbery and murder, and renders cities 
unsafe and virtually uninhabitable * * * . The jury system 
has been found impracticable for the enforcement of ordi¬ 
nances against petty offenses in thickly populated centers.” 69 

In the case of Ex Parte Johnson above referred to, the 
other side of the controversy is presented fairly well. The 
court says: “If we needed evidence of the value of the 
right of trial by jury, we should find abundance of it in 
the record before us. A citizen is arrested without a 
warrant, is brought before the municipal court, is sum- 

.- ' 

®*Wood v. City of Brooklyn, 14 Barb. 425. 

6 !) Cpo. A. Honshaw, Okla. Municipalities, Jan. 15, 1918. 



Relation of City to State 


603 * 


marily convicted on (hearsay testimony, and is given the 
maximum sentence, which in effect amounts to 6 months’ 
penal servitude. He is poor, and by reason of his pov¬ 
erty he is unable to give an appeal bond; on the mittimus 
he is then by virtue of a contract between the city and the 
county placed in the custody of the overseer of the county 
chain gang to serve out the sentence imposed. The pun¬ 
ishment imposed in its nature and character is the same 
as that imposed for crimes against the state. It cannot 
be that such punishment can be imposed in Oklahoma by 
the ipse dixit of a police judge. If the sentence can be 
for six months, it may be for twelve months if the legisla¬ 
ture should permit it. Truly it is said that ‘summary 
judgment is but judicial despotism.’ ”. 

It seems to the present writer that while summary trial 
may be objected to on the ground that it may give rise to 
abuses, yet it is necessary for the city to possess the power 
to try summarily if it is to protect the safety of its citi¬ 
zens. If an easy method of appeal to a higher court is 
provided, which involves only a small bond, it is hard to 
see that the accused has not had due process of law. It 
is a fact of legal history that municipalities have had the 
power to punish summarily or without a jury. 70 This power 
has also been upheld by the highest courts in some eighteen 
jurisdictions. 71 If sudh power is definitely granted to the 
cities of Oklahoma, it might perhaps be desirable for the 
legislature to limit the fines which they might impose to 
seventy-five or one hundred dollars, and also to limit the 
jail sentence to sixty days or even less.. 

13. Does a city have the right to acquire a public utility? 

This right is expressly granted in the constitution, not 


70 McInery v. City of Denver, 29 Pae. 516. 
71 Sec. 24 Cyc. 145. 



604 


Government of Oklahoma 


only to home rule cities but to others also. Art. X, Sec. 
27 of the constitution provides that “Any incorporated 
city or town in this State may, by a majority of the quali¬ 
fied property tax paying voters of such city or town, vot¬ 
ing at an election to be held for that purpose, be allowed 
to become indebted in a larger amount than that specified 
in section twenty-six for the purpose of purchasing or con¬ 
structing public utilities, or for repairing the same, to( be 
owned exclusively by such city: Provided, That any such 
city or town incurring any such indebtedness requiring 
the assent of the voters as aforesaid, shall have the power 
to provide for, and, before or at the time of incurring such 
indebtedness, shall provide for the collection of an annual 
tax in addition to the other taxes provided for by this Con¬ 
stitution, sufficient to pay the interest on such indebted¬ 
ness as it falls due, and also to constitute a sinking fund 
for the payment of the principal thereof within twenty-five 
years from the time of contracting the same/’ 

The only limitation, therefore, which is placed upon the 
right of a city to acquire public utilities would seem to be 
the construction which the court gives to the term “public 
utility.” So far the Oklahoma courts lhave been exceed¬ 
ingly liberal in interpreting these words. In the case of 
Edwards v. Miller 72 holding that sewers are public utilities 
the court cited with approval Valley City Salt Co. v. 
Brown 73 in which it was held that the term “public utility” 
is synonymous with the term “public use.” In State ex 
rel. Manhattan Construction Co. v. Barnes 74 it was held 
that a convention hall is a public utility. In a rather re¬ 
cent case 75 it was (held that a cemetery is a public utility 

72 21 Okla. 448, 96 Pac. 747. 

73 7 W. Va. 191. 

74 22 Okla. 191, 97 Pac. 997. 

75 Denton vs. City of Sulphur, 78 Okla 178, 189 Pac. 532. 



Relation of City to State 


605 


within the meaning of Sec. 27, Art. X of the constitution, 
which empowers any incorporated municipality by a ma¬ 
jority vote of the qualified property owners to become in¬ 
debted for the purpose of constructing or purchasing a 
public utility. In addition to the above the following 
utilities have been declared to be public utilities : water¬ 
works, 76 ; sewers," 7 ; public parks, drive ways and sidewalks 
and pavements in streets surrounding walks 78 ; fire sta¬ 
tions. 79 

It was held in Coleman vs. Frame, 80 that street improve¬ 
ments are not public utilities within the meaning of the 
above constitutional provision, and in Hooper v. State ex 
rel. Cline, 81 it was held that street and alley intersections 
cannot be considered as public utilities. In Oklahoma 
City v. State ex rel. Edwards, 82 it was held tjhat public fire 
stations and street cleaning equipment are embraced 
within the term “public utilities” as used in Art. X. Sec. 
27 of the constitution. 

14. May a city regulate public utilities operating 
wholly or partly within its boundaries? 

The constitution, at least as interpreted by the courts, 
is exceedingly ambiguous on this point. One section 
dealing with municipal corporations provides: “No 
grant, extension, or renewal of any franchise or other 
use of the streets, alleys, or other public grounds or ways 
of any municipality, shall divest tlhe State or any of its 
subordinate subdivisions, of their control and regulation 

76 Dunagan et al v. Town of Red Rock, 58 Okla. 218; 158 Pac. 1170. 

77 State vs. Miller, 21 Okla. 448; 96 Pac. 747. 

78 Barnes vs. Hill, 23 Okla. 207; 99 Pac. 927. 

^Oklahoma, City vs. Slate, 28 Okla. 780, 115 Pac. 1108. 

S0 26 Okla. 193; 109 Pac. 928. 

81 26 Okla. 646: 110 Pac. 912. 

82 2£ Okla. 780; 115 Pac. 1108. 



606 


Government of Oklahoma 


of such use and enjoyment. Nor shall the power to reg¬ 
ulate the charges for public services be surrendered; and 
no exclusive franchise shall ever be granted.” 83 The arti¬ 
cle dealing with the corporation commission provides, 
however, “That nothing in this section shall impair the 
rights which have heretofore been, or may hereafter be, 
conferred by law upon the authorities of any city, town 
or county, to prescribe rules, regulations, or rates of 
charges to be observed by any public service corporation 
in connection with any services performed by it under a 
municipal or county franchise granted by such city, town, 
or county so far as such services may be wholly within the 
limits of the city, town, or county granting the fran¬ 
chise.” 84 

If the first section quoted were interpreted according 
to its evident meaning it would seem only to provide that 
power to regulate should never be granted away by vir¬ 
tue of any grant or franchise. In fact, it was so interpre- 
ed in the case of Oklahoma Railway vs. Powell, 85 in which 
the court said, “this is limitation (not a grant of power) 
and prevents the municipality from ever surrendering or 
contracting away such power when it may be granted to it 
by the sovereign power.” The fact that the section ex¬ 
pressly provides that such grants or franchises shall not 
divest the state or any of its subordinate subdivisions of 
their control and regulation of such use and enjoyment, 
would seem to mean that the subdivisions as well as the 
state had power of regulation. These interpretations, how¬ 
ever, have not been followed by the courts, as we shall see. 

In the first case which came before the court involv¬ 
ing the question whether or not a city might regulate pub- 
- r 

83 Art. XVIII, Sec. 7, Const. 

84 Art. IX, Sec. 18. Const. 

8B 33 Okla. 737, 127 Pac. 1080. 



Relation op City to State 607 

lie utilities, the court held it was tihe intention of the sec¬ 
tion “that the power to regulate the charges for public 
service by municipal corporations is a power which it was 
the intention of the framers of the constitution should be 
exercised by the sovereign power only * * V’ In the ab¬ 
sence of express delegation of such power the city had no 
right of regulation. 8 * 

In the case of Pioneer Telephone and Telegraph Co. vs. 
State , 87 Oklahoma City, which has a home rule charter, 
had by franchise regulated the rates to be charged for 
telephones. The court refused to allow the city this pow¬ 
er on the ground that such a right can only be derived 
from the legislature by an express grant or by necessary 
implication from power expressly granted. The grant to 
the city of a right to give a franchise does not give a city 
power to fix rates by franchise or otherwise. 

The court followed nearly the same line of reasoning in 
the famous Pawhuska Oil & Gas Company case . 88 In 
this case the city of Pawhuska, acting under a statute 89 
conferring upon cities of the first class the power to make 
contracts with public service corporations for furnishing 
gas or electric lights, and to regulate by ordinance the 
rates to be charged, granted a franchise for twenty-five 
years to the defendant company with the proviso that the 
rates charged should not exceed fifteen cents per thou¬ 
sand feet of gas. Subsequently, the state legislature 
passed an act 90 which provided that the state corporation 
commission should have general supervision over all 

“South McAlester-Eufaula Telephone Co. vs. State, ex rel Baker- 
Rei&t Mercantile Co. 25 Okla. 524, 106 Pac. 962. 

8T 33 Okla. 724, 127 Pac. 1073. 

“Pawhuska vs. Pawhuska Oil & Gas Co. 64 Okla. 214. 166 
Pac. 1058. 

8B R. L. Okla. 1910, Sec. 593. 

B0 S. L. 1913, Chap. 93. 



608 


Government of Oklahoma 


public utilities furnishing heat, light, water, and power, 
with power to fix and establish rates and prescribe rules, 
requirements and regulations affecting the service. Late 
in 1916, tjhe Pawhuska Oil & s Gas Company appealed to 
the corporation commission for an increase in rates. That 
body granted them an increase to twenty cents per thou¬ 
sand feet of gas. From the award the city appealed to 
the supreme court of the state. The court upheld the in¬ 
crease made by the corporation commission. While the 
court semed to fully concede that the legislature by the 
1910 statutes had delegated power to cities to regulate their 
own utilities, yet it held this delegation was only to endure 
until such time as the state saw fit to exercise its para¬ 
mount authority; that under the constitution the legisla¬ 
ture could withdraw that authority from the city when¬ 
ever in its judgment the public interest required; and 
that it was effectively withdrawn by the act of 1913. This 
case stands for the proposition, then, that since in respect 
to rate making the legislature is supreme, it may delegate 
to cities the right to regulate the rates of public utilities 
operating within their boundaries, and may also take 
away such right at any time it sees fit. 91 

The next important case involving public utility regula¬ 
tion on behalf of cities is that of the City of Bartlesville 
vs. The Corporation Commission. 92 In this instance the 
city charter itself provided for the exclusive regulation of 
certain classes of utilities by the city. 95 This case brought 
up the question definitely, whether or not a charter pro- 

91 See also City of Durant vs. Consumers Light & Power Co. 
— Okla. — , 177 Piac. 361. 

92 82 Okla. 160, 199 Pac. 396. 

93 “The City of Bartlesville shall have the power by ordinance 
to fix and reghlate, from time to time, reasonable rates, fares, tolls 
*nd charges to be charged or exacted for public services bv tele¬ 
phone, gas, electric light and street railway companies, and by any 



Relation of City to State 


609 


vision granting to cities the right to regulate public utili¬ 
ties supersedes the state law on the subject. The court 
held flatly that it does not, saying, “The supreme Legis¬ 
lature of the state having seen fit to place the power of 
regulating rates for gas furnished by public utilities in the 
Corporation Commission, in our judgment the state has 
such a sovereign interest in this subject of legislation as 
to preclude the charter cities of tlhe state from entering 
the field by charter provisions. ,, 

Let us summarize. In the South McAlester-Eufaula 
Telephone Company case, the city exercised the power of 
regulation without special state sanction and simply by 
virtue of the fact that the right of such regulation was 
contained in the franchise which it had granted to the 
company. In the Pioneer Telephone & Telegraph case 
the city, having a right to grant franchises, had regu¬ 
lated rates through this power. In the Pawhuska case 
the city had regulated by a franchise provision, but under 
the power of regulation delegated to it by the state. In 
the Bartlesville case the city charter itself granted the 
exclusive right of regulation to the city. From the de¬ 
cisions in these cases the position of the city in respect to 
the regulation of public utilities would seem to be: first, 
that the city has no inherent right to regulate public utili¬ 
ties; second, that the legislature can delegate such right 
to cities if it wishes to do so and also can take away this 
right when it sees fit; third, that the city cannot give it¬ 
self such power by charter provision. In other words, 
the city is entirely under the power of the state legisla- 

and all other persons or corporations operating under a grant, 
franchise, or license from the city: and to prescribe the quality 
of the service; and the value of any franchise conferred by thi« 
city shall not be considered in the computation of what shall be 
considered the reasonable rates for compensation.” Charter, Art. 
11. Sec. 6. 



610 


Government of Oklahoma 


ture in respect to the regulation of public utilities, and 
franchise or charter provisions in conflict with the state 
law in this field of governmental activity are invalid. 

Nor may a city prescribe rules and regulations govern¬ 
ing public utility services. In the case of Oklahoma Ry. 
Co. v. Powell et al 94 Oklahoma City, acting under the 
powers conferred by its 1902 charter and before the 
right of home rule had been granted by the state consti¬ 
tution, had passed an ordinance granting a franchise to 
va street railway company and providing for the regulation 
of such company “with reference to the operation or main¬ 
tenance of said street car system, etc.” An act of the ter¬ 
ritorial legislature of 1903 95 granted corporations the 
right of constructing street railways upon “such terms 
and conditions as may be agreed upon between such cor¬ 
porations and suclh city or town.” By its charter, later 
adopted under the home rule provision of the state con¬ 
stitution, the city also provided for the regulation of pub¬ 
lic utilities. Later on the state corporation commission 
passed rules and regulations in respect to hours of ser¬ 
vice, transfers, etc. conflicting with the regulations im¬ 
posed by the city. 

The court, held that the regulations of the corporation 
commission were valid, saying: “In view of said rule of 
strict construction (referred to earlier in the case) of 
corporate powers being applicable to grants of power to 
municipal bodies which are out of the usual range, we must 
conclude that Oklahoma City under its charter, adopted 
by virtue of section 3a and 3b of Art. XVIII of the Consti¬ 
tution, without further authorization by the legislature, 
luay not prescribe rules and regulations to be observed, 
ana fix rates to be charged by the appellant in perform- 


#4 33 Okla. 737, 127 Pac. 1080. 
#8 S. L. p. 141. 



Relation of City to State 


611 


ance of its duties toward the patronizing public as the 
public service corporation.” 

This decision is in line with decisions in respect to the 
regulation of rates of public service corporations, namely, 
that the legislature possesses the authority to grant muni¬ 
cipalities power to regulate utilities, and that the city does 
not derive such powers from its constitutional right to 
frame a charter. 

It is interesting to note that in but one of these cases was 
the provision regarding the right of cities to regulate 
utilities, found in the article dealing with the corporation 
commission, discussed. It may possibly be that the courts 
did not notice this important provision of the constitu- 
tion, as it is found in a rather unexpected place, and is 
also obscured by being a proviso after a long section deal¬ 
ing with the power and authority of the corporation com¬ 
mission. 

15. May a city determine upon its own educational 
system 7 

The charter of Ardmore, adopted in 1908, provided for 
the election of a board of education and for the organi¬ 
zation, maintenance, and control of the city public 
school system in a manner directly in conflict with the 
general laws of the state, which establish independent 
school districts in cities of the first class, and regulate 
their organization and powers. The court held, in Board 
of Education of Ardmore v. State ex rel. Best 96 that 
the city had entirely exceeded its powers in trying m any 
way to regulate the school system, on the ground that: 
tme public school system which the Legislature was di¬ 
rected to establish by Art. XIII of the constitution is a 


"26 Okla. 306, 109 Pao. 503. See also State ex rel Friend, 47 Okla. 
44, 147 Pae. 101. 



612 


Government of Oklahoma 


matter ot state concern and is not in any sense a munici¬ 
pal affair. ‘The word ‘system’ itself imports a unity of 
purpose as well as an entirety of operation.” 

Shortly after this case was decided, the legislature 
passed an act permitting the charter cities to fix the num¬ 
ber of members of their boards of education, their terms 
of office, the time and manner of their election, and to 
attach adjacent territory outside the city but within the 
school district to the appropriate voting precinct. 0 ' 

In 'the case of Cotteral v. Baker 9 * the court held 
that this was not an unconstitutional delegation of legis¬ 
lative power “because the Legislature still reserves and 
exercises complete control over the public school ‘system’ 
throughout the state. This system is in harmony with the 
general policy of the state relative to municipal charters 
and the larger measure of self control guaranteed by our 
Legislature.” (The court evidently meant constitution.) 
This law was objected to further on the ground that it 
permitted the city proper, by the adoption of a charter, 
to legislate for portions of the school districts lying out¬ 
side the city limits. To this the court replied that to a. 
certain extent this was a delegation to the municipality 
of power to legislate for persons not residing in the city, 
but that, “The school district is, of course, a separate en¬ 
tity from the city; but, while this is true, it is composed to 
property; and, while it may be true that a city cannot be 
a very great extent, of the same people and of the same 
given the power to legislate for a county, or for the re¬ 
mainder of the state, whereas in this case the school dis¬ 
trict lines have been extended by consent of the city and 
of the persons residing in the attached property, we do 
not think that the power of the legislature to permit the 


,T S, L. 1910, Oh. 113. 

s8 34 Okla. 533, 126 Pac. 211. 



Relation of City to State 


613 


city to devise the manner of electing a school board should 
be destroyed, because it incidentally affects the property 
which has been attached by mutual consent, where, as 
in this case, those persons so attached are given full 
power of participation in the election of the members of 
the board of education.” 

An act of 1915" provided that the members of the 
board of education in cities of less than five thousand 
shall be nominated one from each ward, and one from 
tihe outlying territory, and elected by the qualified voters 
of the respective wards and outlying territory. There 
was fio provision that cities operating under a charter 
form of government should be exempted from the oper¬ 
ation of this act. In the case of Searcy v. State 109 
the question arose as to whether this act applied to home 
rule cities. The court held that these provisions were ap¬ 
plicable to both chartered and non-chartered cities of less 
than five thousand. This decision considerably limits the 
Cotteral decision in that the legislature itself can say 
what size of charter cities do or do not have the right to 
provide for the number, terms, etc., of the members of 
the boards of education. From this case and also from 
the Cotteral case, it may be deduced that the power of a 
home rule city in Oklahoma to control matters pertain¬ 
ing to public education must be had from the legislature 
and is not bestowed upon the city by the constitutional 
grant of home rule. 

16. Does a state law control charter provisions in re¬ 
spect to health? 

So far there have been no cases testing out this impor¬ 
tant question Although the state law provides for th^ 


"S. L. 1015. Oh. 278, Sec. 8. 
1M 64 Okla. 257, 107 Pac. 476 



614 


Government of Oklahoma 


organization of health authorities within cities, 1 ’ 11 many 
home rule cities have by charter established their 
own boards of health and have prescribed their duties or 
else have provided that their governing authorities should 
do so. Some seem to have made no charter provisions 
at all governing health, evidently following the state law 
in respect to the organization of their health department. 

17. Does a state law control charter provisions in re¬ 
spect to highways and pavement? 

Article 7 of the Revised Laws of Okla. 10J contains a 
complete statement of the procedure to be followed by 
Vhe cities of the state in making street improvements.. In 
the case of Oliver vs. Pickett 103 the question arose 
as to whether or not the provisions of the city charter 
regarding street improvements would take precedence 
over the general state law. In this case the city charter 
had adopted pavement proceedings that were prescribed 
by the law in force at the time the charter was estab¬ 
lished. 104 By the state's revised laws of 1910 the pro¬ 
cedure was changed. The city commissioners proceeded 
fto pave under the provisions of the old law as contained 
An the city charter. The question arose, therefore, 
whether the city charter provisions in respect to city 
paving took precedence over the general state laws. The 
court quoted Burns vs. Linn 105 to the effect that “it 
has been the uniform holding of the court that the pro¬ 
visions of a charter, adopted and approved in accordance 
with such constitutional and statutory provisions, become 
the organic law of such municipality and supersede the 
laws of the state in conflict therewith in so far as they 
attempt to regulate merely municipal matters." The 

30t R. L. Old a.. 1010. Sec. 0704. 

102 Sections 60S to 646. 

in3 79 Okla. 315. 193 Pac. 526. 

1M Snyder’s Complied Laws of 1909, Sec. 722-733. 

105 49 Okla. 526, 153 Pac. 826. 



Relation of City to State 


615 


court, having decided that street paving was a purely mu¬ 
nicipal matter, held therefore that the provisions of the 
city charter would govern. 

In ex parte Shaw 100 it was held that the state law 
regulating the registration of motor vehicles controlled 
local ordinances in conflict therewith. This case arose 
over the automobile tax, regarding which it will be re¬ 
membered that the act made the state tax to be in lieu 
of all other taxes. It was held that the city, therefore, 
had no right to levy a tax. Tlhe court seemed to base its 
decision upon the ground that this act was an exercise 
of thepolice power of the state. The court says, “The act 
in question is not an attempt by the legislature to levy 
taxes for local purposes. Rather is it an exercise by the 
legislature of the police power of the state in the exac¬ 
tion of a registration fee or privilege tax in the nature 
of compensation for damage done the roads of the state 
by driving an automobile over them, the same to go to 
the support of the highways of the state, in which the 
state has a paramount interest.” If such a tax is justified 
by the state under its police power as compensation to 
injury done state roads, it is a little hard to see why the 
city could not also levy a tax to compensate it for the 
damage done to its streets. A recent California decision 
J07 was based on the much wider ground that: “The 
streets of a city belong to the people of the state, and 
every citizen of the state has a right to the use thereof, 
subject to legislative control;” and that: “The right of 
control over street traffic is an exercise of a part of t/he 
sovereign power of the state. While it is true that the 
regulation of traffic upon a public street is of special in- 

106 53 Okla. 654, 157 Pac. 900. 

107 Ex parte Daniels, 192 Pac. 443. 



616 


Government of Oklahoma 


terest to the people of a municipality, it does not follow 
that such regulation is a municipal affair * * *•” 

There have been no decisions in Oklahoma in respect to 
a conflict of city ordinances with state law regarding the 
speed of motor vehicles. 

It was held in the case of Ex parte Holt’ 08 that the 
city has a right to pass ordinances regulating, as a police 
regulation, motor vehicles offered to t|he public for hire, 
and has a right to charge a license fee sufficient to cover 
the expenses of this regulation. However, where an or¬ 
dinance purporting to be regulatory imposes a pecuniary 
charge excessively disproportionate to the cost of regula¬ 
tion, it constitutes a tax for revenue and is prohibited 
under the statute’ 09 regarding the licensing of motor 
vehicles by the state, which provides that municipal au¬ 
thorities shall have no power to pass any ordinance re¬ 
quiring from the owner of any motor vehicle any license 
fee for the use of highways, or to exclude from the high¬ 
ways any vehicle registered in accordance with the state 
law. Nor may a municipality impose a tax upon auto¬ 
mobile owners in the nature of an occupation tax. 110 
According to these decisions therefore, while a city may 
control its own paving procedure and may make police 
regulations and require small licenses for regulatory pur¬ 
poses, it cannot interfere with the general state law li¬ 
censing motor vehicles. 

18. Does a state law govern the organization and con¬ 
trol of fire departments? 

While under any reasonable interpretation of the home 
rule provisions of the Oklahoma constitution, cities would 
seem to have complete power to control their own fire 

108 178 Pac. 260. 8ee also Ex parte Phillips, 167 Pac. 221. Ex 
parte Mayes 167 Pac. 749. 

1W S. L. 1915. Chap. 173. Art, 4 sec, 8- 

110 Citv of Muskogee v. Wilkins, 175 Pac. 497. 



Relation of City to State 


617 


departments, yet the state through a statute of 1917 111 
has virtually established the two platoon system for all 
fire departments in the state in municipalities of over ten 
thousand population, by requiring that no paid or part 
paid employee of a fire-department in such municipality 
shall be compelled to be on duty more than ten consecu¬ 
tive hours during the day time or more than fourteen 
consecutive hours during the night time. T(he larger 
home rule cities of the state, which come under this pro¬ 
vision, seem to have accepted it without questioning the 
right of a state legislature to dictate to them in respect 
to the organization of their fire department. No cases 
have so far arisen concerning this law. While the courts 
might decide that the law is in conflict with the home 
rule right of a city, they might conceivably uphold it 
under the police power of a state in prescribing the hours 
of work of those engaged in especially dangerous or haz¬ 
ardous occupations. 

19. Does a state law control municipal ordinances 
regarding weights and measures? 

The state law provides for a county weigher who is ‘To 
receive, inspect, and weigh * * * all cotton, grain of 
every kind, live stock, hay, cotton seed, coal, wood, broom 
corn and all other farm products sold by weight * * ” 112 

Oklahoma City passed an ordinance providing for city 
scales and a public weigihmaster who should weigh all 
goods offered. 

In the case of Oklahoma City v. Colt 113 it was held that 
the municipality had a right to establish such weighing 
facilities. The city could not, however, the court held, 


m S. L. 1919, Ch. o. 

UI R. L. 1910. Sec. 1743. 
U T37 Pae. 369. 



618 


Government of Oklahoma 


exclude the county weighmaster from weighing goods 
brought to him for weigihing. 

20. Does a state law control charter provisions in re¬ 
spect to the licensing of pool halls? 

In the case of Nicodemus v. State ex rel Parker' 14 the 
question arose whether the city by ordinance has power 
to prescribe additional qualifications than those laid down 
by general law for persons who wish to conduct poo. 
halls.* The court held that the city has no power to pre¬ 
scribe additional qualifications; and that when a person 
has obtained a license for conducting a pool hall from 
the county judge, as required by law, and has paid to the 
city clerk the license fee, the city authorities have no pow¬ 
er to refuse a city license. This case stands for the prop¬ 
osition, therefore, that in tihe exercise of its police power 
the city is subject to the state. This seems to be the usual 
relation of the city to the state, whether operating under 
a home rule charter or not. 118 

23. Does a state law control the hours and wages of 
laborers employed by the city ? 

It was held in the case of State v. Tibbetts (Oklahoma 
Appellate Court Reporter Vol. XVII, 450) that it was 
within the police power of the state to regulate the num¬ 
ber of hours constituting a day’s work for laborers em¬ 
ployed by any municipality, and to provide that their 
compensation should not be less than current wages for 
like labor. This power, said the court, is inherent in the 
state, and no part of the power has by general law or 
special charter been delegated to the city. “A municipal¬ 
ity is a creation of the State, exercising delegated powers 
only, and cannot, under our Constitution, arrogate to it- 


114 198 Pac. 847. 

115 McBain, Municipal Home Rule, p. 138-139. 



Relation of City to State 


619 


self governmental powers in conflict with the general 
laws and fixed policies of state government.” 

SUMMARY 

We have seen that all towns of less than two thousand 
are under the complete control of the legislature, except 
in so far as the legislature is limited by constitutional 
provisions. Cities of more than two thousand are divided 
into two classes; those which have not framed their own 
charters, and are under similar control and are subject 
to state law; and those which have framed and adopted 
their own charters. We have seen, further, that the con¬ 
stitution granted to cities of more than two thousand 
population the rigtht to frame their own charters on con¬ 
dition that these charters should be “subject to and con¬ 
sistent with” the constitution and laws of the state. By 
neither the constitution nor the state laws has the rela¬ 
tionship of the home rule cities to the state been defined 
in such a way as to make it certain. This has left the 
problem to the courts, when specific cases have arisen test¬ 
ing detailed points of this relationship. 

The results of court determination of the legal position 
of the city in Oklahoma have been far from satisfactory. 
Under such a system the courts must inevitably deter¬ 
mine upon large questions of public policy, since they 
must pass upon the question as to whether cities do or do 
not, under the constitution, (have certain powers; and 
must also decide, in case of concurrent powers lodged in 
both the state and the cities, under what conditions the 
city must yield to the state in the exercise of these powers. 
Since the courts pass upon specific questions as they arise, 
the policy formulated by them, in so far as it can be called 
a policy, is not a consistent, well thought-out plan of city 
relationship to the state; but is more or less haphazard. 


620 


Government of Oklahoma 


A good many questions involving such relationship have 
never been decided upon by the courts, thus leaving quite 
a large field of uncertainty regarding the city's place in 
the state government. Court decisions, furthermore, 
have been in a good many instances so conflicting as to 
increase the uncertainty. 

Since the relationship of the city to the state is largely 
a question of the power of the city to do certain things 
and also a question of the superiority or inferiority of 
charter provisions to state law, it may be well to summar¬ 
ize the city's position in regard to the powers it does or 
does not possess. 

The courts, in passing upon the various cases brought 
before them involving the powers of home-rule cities, 
have laid down, although not always very clearly, several 
criteria to be followed. These may be brought together 
and presented as a series of questions which might be 
asked whenever such a problem were involved. 

Has the constitution given express power to the city ? 

Has the constitution expressly or by fair implication 
denied the power to the city? 

Is the function of such general concern and of such 
a nature that the state alone should exercise it or regulate 
it? 

Is the power of such a nature that the city may prop¬ 
erly exercise it in the absence of state regulation? 

In case of concurrent powers, is the function merely 
local in nature, or is it of such a nature that the city's 
power must be exercised either in subordination to, or 
concurrent with, the powers of the state? 

Is the function of merely local interest? 

Where the constitution has given express powers to the 
city, there can be no question as to the right of the city to 
exercise them. The only questions which may arise con- 


Relation of City to State 


621 


cern the nature or extent of such powers. Such questions 
have arisen, as we have seen, in many instances as to the 
nature of the city’s home rule powers, the meaning of 
public utility, the exercise of the initiative and referen¬ 
dum, and the city’s power over franchises in connection 
with the state’s power to regulate public utilities. 

Several cases have arisen in which the courts have been 
called upon to decide whether or not certain powers are 
expressly denied cities by constitutional provisions or by 
fair implication. The courts have held in this connection 
that the city has no power to determine its charter pro¬ 
cedure; that such procedure is either laid down by the 
constitution and is self executing, or where not so laid 
down must be supplemented by the legislature. The city 
has no power to establish a system of primary elections, 
since the constitution expressly provides that the legisla¬ 
ture shall establish a primary system embracing all divi¬ 
sions of the state government. 

The power to provide for jury trial is by implication 
taken away from the city, since the constitution provides 
that the accused shall have a trial by “an impartial jury 
of the county in which the crime shall have been com¬ 
mitted.” The power to try criminal cases in a summary 
manner is also by implication taken away by the constitu¬ 
tion, since jury trial is necessary in all criminal prosecu¬ 
tions. By implication the city has no control over educa¬ 
tion, unless the legislature wishes to give it some slight 
power in this respect, since the constitution provides that 
the legislature shall establish an educational “system”, 
and such a system would be impossible if every city under 
its charter powers could establish its own system. 

There are a good many functions of government which 
the cities under their home rule powers have never tried to 
exercise. These include such important subjects as do- 


622 


Government of Oklahoma 


mestic relations, wills and administration, trusts, con- 
tracts, real and personal property, banking, insurance, 
corporations, crime, mortgages, agriculture, examining 
for professional qualifications, and many other subjects. 
The cities themselves as well as every one else, seem to 
recognize the fact that these are matters of state concern 
rather than local concern. 

The cities have, however, attempted to regulate and 
control several important classes of affairs which the 
courts have held to be of such general state concern that 
the legislature alone should control them, or at most 
should only delegate its power to the cities. Among such 
powers possessed by the state legislature are the control 
and regulation of public utilities in every respect save the 
granting of franchises. The legislature, however, may 
delegate this power to cities. Control of education might 
also possibly come under this head; though, as we have 
seen, it is implied from a constitutional provision that this 
power is withheld from cities. The examination and ap¬ 
proval of bond issues is also a matter of state concern, un¬ 
less the bonds are special assessment bonds regarding 
which the city assumes no liability. The licensing of 
motor vehicles is purely of state concern in so far as the 
license fee is equivalent to a tax. When it constitutes 
only a municipal police regulation and is not large enough 
'in amount to constitute a tax, the city has power. While 
general taxation is a matter of state concern, taxation for 
all “legitimate purposes of municipal government” appears 
to be a matter of local concern. Although there are no 
decisions on the subject, it would seem that the regula¬ 
tion of contagious diseases, water supplies, sewer supplies, 
etc., are matters of general rather than local concern. 

If one takes the Bodine decision at its face value, the 
city can employ its own methods of assessing, levying and 


Relation of City to State 


623 


collecting taxes until the legislature has provided a sys¬ 
tem contrary to the city system. 

In the case of concurrent powers, the courts seem to 
make a distinction between those powers which are 
merely local in nature and those which are general in na¬ 
ture. The police power is perhaps the best example. The 
city has large police power but it must be exercised cur¬ 
rent with and not contrary to the powers exercised by the 
'state. From the Simmons decision it seems that the city 
lean exercise this power in respect to the same classes of af¬ 
fairs as can the state. The city can, under this power, 
enact ordinances prohibiting the same offenses or pun¬ 
ishing for the doing of the same acts which the state pro¬ 
hibits and punishes. While the city has the power to 
make regulations under the police power, it does not have 
the power to punish violations of them in a summary 
manner, or to provide fines of over $20, including costs, 
or imprisonment at all, unless the legislature provides 
courts with juries in such cities to try the offenses in the 
first instance, if such violations when punishable by a 
greater fine or by imprisonment are by the law of the 
state made criminal in their nature. In case the legisla¬ 
ture has not made violations of municipal ordinances in¬ 
volving such penalties “criminal in nature” and subject 
to “general laws relating to criminal procedure,” the city 
would seem to have the power to try offenders in a sum¬ 
mary manner and provide as large a fine and as great an 
imprisonment as is permitted by the legislature, though 
even this is doubtful in view of the language of the courts 
in the Johnson and Mochmann cases, cited above. From 
the general language of the courts in several cases, how¬ 
ever, this is not entirely certain. The legislative enact¬ 
ment declaring violations of municipal ordinances “crim¬ 
inal in nature” has furnished ample ground for denying 


624 


Government of Oklahoma 


the city this right, and so the general language regarding 
the sacred right of jury trial, etc., for the present at least, 
may be considered as dicta. The city can possibly or¬ 
ganize its own courts until the legislature may make pro¬ 
vision for municipal courts, although there has been no 
definite decision upon this point. 

The state and the city have concurrent jurisdiction over 
the weighing and measuring of commodities, and both 
may provide for scales and weighers. The city cannot, 
however, force every one in the city to use the municipal 
scales to the exclusion of the county scales, which have 
been provided for by state law. 

Public health is one of the functions in which the state 
and the city also have a concurrent jurisdiction. There 
seems to have been no case of legal conflict between the 
city and the state in respect to jurisdiction, although the 
state has exercised its powers over the city quite exten¬ 
sively, in its control over water supplies and sewer sys¬ 
tems, its requirement that the city shall arrange for the 
treatment of prisoners having venereal diseases, etc. The 
fact that the state in many instances acts directly upon 
the individual in enforcing the health laws, instead of 
through city agents, perhaps has kept the city and the 
state from conflict in respect to their jurisdiction. 

While the city can assess, levy and collect its own 
taxes, unless its provisions run contrary to state law, it is 
extremely doubtful whether it could classify property for 
the purposes of taxation. Where the state law subjects 
special classes of property to special taxes, as in the case 
of the gross production tax, the mortgage recording tax, 
the income tax, and the automobile license tax, the courts 
would probably hold that the city would have no power 
to levy a further tax. While the court decision uphold¬ 
ing the exclusive right of the state to tax motor vehicles 


Relation of City to State 


625 


was based on the police power of the state over highways, 
and so perhaps might not govern the other special taxes, 
there is little doubt that the courts would find some way of 
asserting the state’s supremacy. 

There are certain classes of activities vdiich the courts 
have held to be of purely local concern. The first and 
most important of these is determining the form of muni¬ 
cipal organization. The home rule city can determine en¬ 
tirely for itself whether it will have the mayor-council 
form, the commission form, the manager form, or any 
other particular system of city government. It may de¬ 
cide what officers it shall (have, and what shall be their 
powers, duties, and salaries. The city can also establish 
its own system of election laws for choosing these officers. 
Although there has been no decision as to whether or not 
the city can lay down its own qualifications for municipal 
suffrage, it might reasonably be supposed that it would 
have this right, since municipal elections have been held 
to be matters of purely local concern. 

The city has the right to dispose of its own public prop¬ 
erty. Charter provisions take precedence over state laws 
in respect to procedure for paving streets. 

From this review of the decisions of the courts upon 
the home rule provisions of the constitution, it is evident 
that the city has not received very important powers as 
a result of these provisions, except in its unlimited control 
over its own organization. 


CHAPTER XXII 


ADMINISTRATIVE CONTROL OVER OKLAHOMA 

CITIES 

No study of the relationship of Oklahoma cities to the 
'state would he complete without an examination of the 
administrative control which the state exercises over its 
cities, both home rule and otherwise. This control, as 
we shall see, is exercised by means of various state or 
state-created officers, boards, commissions, etc. It will 
be observed from later discussion that this control con¬ 
cerns itself largly with those functions in which the 
courts have {held that the state has a sovereign interest. 

THE CONTROL OVER THE CITY ORGANIZATION BY THE GOVERNOR 

The action of the governor of the state is necessary 
when a town, village or community, having a population 
of 2,000, wishes to become a city. Within thirty days 
after the filing of a petition for incorporation as a city 
by at least thirty-five per cent of the qualified voters 
residing in such a subdivision of the state, the governor 
must issue a proclamation calling for an election to deter¬ 
mine this question and to select city officials. In this 
proclamation he establishes polling places, divides tlhe 
city into temporary wards, and appoints three judges and 
two clerks of election for each polling place. 1 * The county 
election board acts as a canvassing board for this elec¬ 
tion. 3 


1 R. L. Okla. 1910, Sec. 527. 

’Ibid, Sec. 581, Bunn Supp. 1915, Sec. 3061; S. L. 1910-11, Ch. 

106, Se?. 8. 



Administrative Control 


627 


Action of the governor is also required before a city 
may adopt its own charter. After the charter has been 
proposed by a board of freeholders and has been ratified 
by a majority of the qualified electors it must be sub¬ 
mitted to the governor for his approval. He “shall ap¬ 
prove the same if it shall not be in conflict with the Con¬ 
stitution and laws of this State.”* Amendments to this 
charter must also receive his approval. 4 From the words 
of the constitution apparently the governor is obliged 
to approve the charter or its amendments unless he finds 
that they are actually in conflict with the constitution 
and laws of the state. Since no means are provided for 
controlling the discretion of the governor in this matter 5 
it is evident that he may veto the action of a city in es¬ 
tablishing its own form of government. 8 Up to the pre¬ 
sent time, so far as the writer is aware, this power has 
never been exercised and the governor has approved 
every proposed charter, usually after consultation with 
the attorney-general. The object of this provision was 
evidently to keep city charters in harmony with the 
constitution and general laws of the state from the begin¬ 
ning, rather than to wait until such time as they should 
be attacked in the courts after the city governments had 
been organized and important steps taken in reliance up¬ 
on their validity. This object, however, has not been 
fulfilled for several reasons. In the first place, the gov¬ 
ernor has no time to devote to the details of city charters. 

*Art, XVIIT, Sec. 3a. 

Tbid. 

Tt has been held that the Governor of Oklahoma cannot 
be manda mused either when he is acting in his capacity of governor 
or when he is acting as a member of a board- State ex rel. Attorney 
General v. Houston, 27 Olda. GOG, 113 Pac. 190; City of Oklahoma 
City v. Haskell, 27 Okla 495, 112 Pac- 992. 

fl McBa'in. Municipal Home Rule. pp. 560. 561. 



628 


Government of Oklahoma 


In the second place, it would require highly specialized 
knowledge of the constitution, state laws and court de¬ 
cisions to determine whether particular provisions are or 
are not in conflict, and the governor is very unlikely to be 
a specialist in this field. Finally, even if the governor 
should determine that certain provisions of the city char¬ 
ter were not in conflict with the laws of the state, and 
should sanction them, this would not prevent t/he courfi 
from passing cn the validity of the same provisions when 
specific cases arise. Since, in the last analysis, the courts 
are the final authority to make such determinations, the 
governor is entirety too likely to pass upon city charters 
without a critical examination of their contents, thus 
“passing the buck*’ to the courts. 

ADMINISTRATIVE CONTROL OVER THE OFFICERS OF A CITY 

A law of Oklahoma of 1917 7 , popularly known as the 
attorney-general’s law, supplements previous statutory 
provisions for the removal of unsatisfactory officers by 
making it the duty of the attorney-general of the state to 
investigate complaints of official misconduct made 
against local municipal officers. Such investigation must 
be made when the governor shall direct; or when notice 
is sent to the attorney-general in writing and verified by 
five or more reputable citizens of the county before an 
officer authorized to administer oaths, that a municipal 
officer has been guilty of certain specified acts. If the 
investigation discloses a reasonable cause for complainc, 
proceedings to remove such an officer from office are in¬ 
itiated by the attorney-general in the district court of the 
county in which the accused resides or in the supreme 
court of the state. Before the attorney-general can bring 
the original suit in the supreme court of the state, he must 


7 S. L. Ok la 11)17, Chap. 205. 



Administrative Control 


620 

show the reason why the proceedings should be brought 
into the supreme court instead of the district court 8 Un¬ 
doubtedly the reason why the law provided that the case 
might be tried in the supreme court was the belief of the 
legislature that this court would be further removed 
from politicial or factional differences than the county 
court. Additional power is given the attorney-general in 
section 12 of this act, which authorizes him “on his own 
initiative, when he has reason to believe that the gambling 
or prohibitory laws, or other penal statutes of the state are 
being openly and notoriously violated in any county of 
the state or subdivision thereof, to institute proceedings 
in ouster” against the responsible officials “as fully as 
he is hereinbefore authorized to do.” 

Official misconduct is carefully defined in this act and 
includes: 

“1. Any wilful failure or neglect to diligently and 
faithfully perform any duty enjoined upon such officer 
by the law of this state. 

“2. Intoxication in any public place within the state 
produced by strong drink voluntarily taken. 

“3. Committing any act constituting a violation of any 
penal statute involving moral turpitude.” 

Although this law has been in force but a few years, 
a great many municipal and county officials have been 
removed under its influence, although in many cases the 
old form of procedure has been employed. 9 A number of 
officers have resigned their positions under the threat 
that this law might be applied. 

In the case of Burns vs. Linn 10 the court held that the 
state may impose upon officers of home rule cities cer- 


8 State ex rel., Freeling v. MeC ollough. 1G8 Pac. 413. 

*R. L. Okla. 1910, See- 5592-5608. See also State v. Daven¬ 
port. 193 Pae. 419. 

10 49 Okla. 526, 153 Pac. 826. 



630 


Government of Oklahoma 


tain specific duties in the enforcement of state laws con¬ 
cerning matters in which the state has a sovereign in¬ 
terest, such as the suppression of gambling, prostitution, 
and the sale of intoxicating liquors. The state may also 
remove such officers for misfeasance or non-feasance in re¬ 
gard to said duties even if the city charter contains ex¬ 
press provisions for their removal. The court based the 
decision on the theory that, even under the constitu¬ 
tional provision granting home rule, municipal police of¬ 
ficers or other officers exercising sovereign power are un¬ 
der the control of the state. In the case of Wooden vs. 
State 11 this point was further emphasized. The charter of 
the city of Tulsa makes the mayor, the chief executive 
officer of the city, a conservator of the peace and imposes 
upon him the duty of enforcing all laws. Under him is the 
chief of police, with power to arrest in all cases. It was al¬ 
leged that the mayor knew that laws and ordinances for¬ 
bidding gambling and the sale of intoxicating liquor were 
being violated and yet failed to take any action. Upon his 
trial under the attorney-general's law, the court held that 
since it is the duty of a mayor to see that the laws of the 
state are enforced, failure to enforce them ,or failure 
to see that the chief of police under him enforces them, 
is just ground for removing him from office. 

STATE CONTROL OVER CITY ELECTIONS 

We have seen that the courts have held that the time 
of holding elections for the choosing of city officials is 
a strictly municipal affair and also that the whole sub¬ 
ject of such elections is a purely municipal matter, in 
regard to which the general laws of the state may be sup¬ 
erseded by charter provisions; but that such provisions 
may not supersede the constitution of the state. Since 


l 173 Pac. 829. 



Administrative Control 


631 


the constitution makes it the duty of the legislature to 
pass laws providing for mandatory primaries and for the 
nomination therein of all candidates in all elections for 
the state, district and municipal officers, the regulation 
of nominations for all municipal officers is vested in the 
state legislature and may not be exercised by a home rule 
city. All cities are required, therefore, to follow the state 
law in regard to primary elections. This law, which is 
discussed more fully in Chapter VII, provides for pri¬ 
mary election officers, for official counters and for certifi¬ 
cation of returns by the county election board. It also 
provides when primary elections shall be held. 12 Practi¬ 
cally none of the cities of the state have considered it 
worth while, in view of the above control, to establish 
further machinery for the regular elections, so that, as 
a rule, they simply follow the state law, which provides 
specifically for the holding of both general and special 
municipal elections. 13 Where there is variation it is gen¬ 
erally slight and has to do with minor details. 

The county election board provides ballots for muni¬ 
cipal elections. These must be as nearly in conformity 
with other election ballots as is practicable. The expenses 
of conducting an election are certified by the county elec¬ 
tion board to the city council, town trustees, or other 
legislative body of the city as the case may be, who are 
required to make proper appropriations to defray these 
expenses. 14 

The members of the county election board are allowed 
the sum of $4.00 per day, for the time they are actu¬ 
ally engaged in the conducting of city and town elec- 

“See Chap. 7 above, The Election System. 

“R. L. Okla. 1910, Sec. 440, R. L. Okla. 1910 ,Chap. X, Art. II. 

14 R. L. Okla. 1910, Sec. 442. 




632 


Government of Oklahoma 


tions; 15 and in case there is more than one city or town 
in the same county holding an election, the total salary 
expense is divided in equal portions between them. The 
board also charges to the city or town other items of ex¬ 
pense incurred by it. 16 

The precinct election board is appointed by the county 
election board and the members are allowed $2.50 a day 
for their services. 17 It will thus be seen that both prim¬ 
ary elections and other municipal elections as well, are 
either carried on entirely by the state or are under its su¬ 
pervision. 

FINANCIAL CONTROL 

The most important administrative control over the 
finances of cities in Oklahoma is placed by law in the 
hands of the county excise board. This board is com¬ 
posed of the county judge, county treasurer, the county 
clerk, the county attorney, the county superintendent 
of public instruction, the county assessor and one county 
commissioner, selected by the board of county commis¬ 
sioners. 18 

The control of this board extends to all municipal sub¬ 
divisions of the state, and applies as well to cities having 
their own charters, unless such cities have provided their 
own machinery for passing upon the budget and levying 
taxes. 18 

The county excise board levies all taxes for the county, 
and for the township, cities (other than those cities that 
provide their own machinery for passing upon the budget 
and levying taxes,) towns, and school districts within the 

15 Bunn Supp. 1918, Sec. 3061^3063. S. L. 191011. Ch. 106, 

*R. L. Okla. 1910, Sec. 443. 

1T R. L. Okla. 1910, Sec. 444, Bunn Supp. 1918, Sec. 3065, S. L. 
1910-11, Ch. 106, See. 5. 

M S L. Okla. 1917, Ch. 226. 

"Bodine v. Oklahoma City, 79 Okla. 106, 187 Pac. 209 



Administrative Control 


633 


county. 20 To this board are submitted statements of the 
financial condition of the county and of all these munici¬ 
pal subdivisions at the close of the preceding fiscal year. 
Each report is accompanied by an itemized statement of 
estimated needs and of probable income from all sources 
other than ad valorem taxes for the current or ensuing 
fiscal year. 21 This board has power to examine these esti¬ 
mates and may revise them as it sees fit, either by striking 
out, decreasing or increasing specific items, or by the ad¬ 
dition of new items, which have not been asked for by 
the local officials. The board is particularly charged 
with tjhe duty of seeing that all mandatory amounts, 
such as salaries, sinking funds and judgments, are 
placed in the estimate; and that the total of all appro¬ 
priations for the county or for other subdivisions there¬ 
in shall not exceed the millage levy which is permitted 
by the constitution or the statutes of the state. 22 In 
case a municipality fails to make and submit an esti¬ 
mate the excise board has authority to make appropria¬ 
tions for current expenses and sinking fund purposes. 28 
Also, if at any time public welfare or the needs of any 
municipal subdivision of the state shall demand it, the 
board shall make supplemental or additional appropria¬ 
tions for current expenses, keeping within the limits 
set by the state constitution. The procedure is as fol¬ 
lows: the proper officials of the county, township, city, 
town or school district wishing additional or supplem¬ 
ental appropriations, file with the excise board a state¬ 
ment showing the financial condition. With this they 
submit a statement of the amount and purpose of each 
supplemental appropriation. If the financial state¬ 
rs. L. Okla. 1917. Ch. 226. Sec. 4-6. 

"Ibid. Sec. 4. 

"Ibid. Sec. 5. 

3 Ibid. Sec. 7. 



634 


Government of Oklahoma 


ment shows a surplus of revenue in any fund or funds 
available for current expenses, the excise board may 
make supplemental appropriations to an amount not 
exceeding the aggregate of the surplus. In case a 
surplus is insufficient for the additional needs the excise 
board has the right to cancel in whole or in part pre¬ 
vious appropriations against which there is no unpaid 
claim or contract pending and to substitute at its judg¬ 
ment the supplemental appropriations. 

Having revised and approved the estimate, the excise 
board appropriates the sum necessary to meet the ap¬ 
proved expenditures. Hjaving ascertained the total 
assessed valuation of the county and of each of its subdi¬ 
visions, it levies a tax in each for the following year, 
fixing the rates so as to yield the amount required for 
the expenditures which have been approved by it. 
To this amount is added ten per cent for delinquent 
taxes. The levies thus made by the excise board are 
certified to the county clerk, who extends them upon 
the tax roll.** 

The several items of the estimate as made and ap¬ 
proved by the excise board constitute appropriations 
for the “several and specific purposes” named in the 
estimate. These appropriations may be used only dur¬ 
ing the year for which they are made, and for only the 
purposes specified. 25 Transfers between appropria¬ 
tion items may not be made except with the approval 
of the excise board, according to the procedure for 
supplemental or additional appropriations. 26 

In case a city wishes to increase its current expenses 
beyond the ordinary limit fixed by law, the excise board 

M S. L. Okla. 1917, Ch. 226, Sec. 6. 

"Ibid. Sec. 6. 

"Ibid., Sec. 8. 



Administrative Control 


635 


is again called in. If the estimate of expenses certi- 
iied to this board exceed the legal limit, and the board 
is of the opinion that the excess is reasonably necessary, 
they enter this fact upon the record of their proceedings 
and give notice, by publication, that a special election 
will be held on the second Tuesday after the first Mon¬ 
day in August next thereafter, for the purpose of sub¬ 
mitting the question of such increase to the qualified elec¬ 
tors/' 7 

In cities, at least fifty per centum of the qualified 
voters must take part in the election to make it valid. 28 
The returns of such election are made to the excise board. 
In case the vote is favorable, the board certifies the in¬ 
crease to the county clerk, who extends it upon the tax 
rolls. 29 

In respect to the assessment, levying and collection 
of taxes, a city has little practical control. The assess¬ 
ing of general property in the city is done by the county 
assessor, 30 and the making of the levies, as we have 
i seen, except in those cities that have, by charter, pro¬ 
vided for making their own levy, is in the hands of the 
county excise board. Appeals from the assessor's 
valuation go to the county board of equalization, which 
is composed of the county commissioners, with the 
county assessor acting as its secretary. 31 This board 
passes upon these appeals in a “summary manner," 
Whatever that may mean. Appeals from this board 
lie to the district or superior court of the county in 

^R. L. Okla. 1010, Sec. 7381. , 

B R. L. Okla. 1010, Sec. 7382. 

®R. Jj. Okla. 1910. Sec. 7385. 

^Bunn Snpp. Sec. 7365f, S. L. 1915 Oh. 193, Sec. 1. 

SI Ibid Sec. 7365k. 7365m. S. L. 1910-11, Ch. 152. Secs. 11, 14. 



636 


Government of Oklahoma 


which the assessment was made and from such court to 
the state supreme court. 32 

The decision in Bodine vs. Oklahoma City 33 would 
seem to indicate, perhaps, that the home rule cities 
might carry on most of the functions in respect to 
assessment, levying and collection of taxes themselves, 
except taxes upon public utilities, automobiles, oils 
and minerals and mortgages 'and other such special 
taxes. As a matter of practice, however, the cities 
will probably leave practically all of the work of as¬ 
sessing and collecting the general property tax to the 
state or its agent, the county. Since the Bodine deci¬ 
sion, perhaps more cities will avail themselves of the 
right of making their own appropriations and their 
own levy, instead of leaving this function to the county 
excise board, since the county excise board's control 
has been extremely unpopular in the home rule cities 
of the state. It would doubtless be inexpedient from 
every viewpoint to have the cities of the state assess 
property, equalize assessments and collect general prop¬ 
erty taxes. Not only would such procedure require a 
costly special agency, but it would 'also prevent a 
unified system of assessment from being put into effect 
throughout the state. If the city has its own special 
collection agency for taxes, this adds just so much more 
to the annoyances of the tax payer, without securing 
to the city any appreciable benefits. 

The difficulties of the city at the present time in 
respect to the assessment of taxes lie largely in the fact 
that property in the city is unequally assessed and also 
is not assessed according to its real value. These con¬ 
ditions arise partly because county assessors are elected 

33 Ibid- Sec. 736n. S. L. 19] 0-11, Ch. 152, Sec 15 

ss 79 Okla. 105, 187 Pac. 209. 



Administrative Control 


637 


and receive such small salaries as to keep able men 
from becoming assessors; and partly because no stand¬ 
ards for the assessment of property obtain. While un¬ 
doubtedly the city might remedy the present situation 
by the establishment of a competent appointed assess¬ 
ing authority and by the passing of an ordinance stand¬ 
ardizing property assessment, it would seem much bet¬ 
ter, perhaps, to follow the suggestion pointed out in 
Chapter IX of centralizing the assessment of all prop¬ 
erty in a state tax commission, which should do the 
assessing under a strict administrative code as to 
methods of determining the valuation, etc. There are 
several taxes, moreover, over which the city could un¬ 
der no circumstance obtain control. 

The assessment of public utilities is in the hands of 
the state board of equalization, composed of the gov¬ 
ernor, the state auditor, the state treasurer, the secre¬ 
tary of state, the attorney-general, the state inspector 
and examiner and the president of the board of agri¬ 
culture. 34 This board subjects such corporations to 
taxation for state, municipal, public school and other 
purposes. 35 It makes its assessments on the basis of re¬ 
ports furnished by the corporations and of hearings 
held before lit. 36 

The returns of this board are certified by the state 
auditor to the county clerks of the various counties. 
These returns show the various portions of the prop¬ 
erty of public utility corporations located in each tax¬ 
ing subdivision of the state, and the assessed value placed 
upon each portion. 37 As soon as the county clerk re¬ 
ceives the certification, he certifies, in turn, to the pro- 


“Const. Art. X. Sec. 21. 

35 R. L. Okla. 1910. Sec. 7337. 
“Ibid. See. 7338. 

“Ibid. Sec. 7349. 



638 


Government of Oklahoma 


per officers of the cities and other taxing subdivisions, 
the amount of assessment that shall be placed upon 
their tax rolls. 38 This property thereupon becomes 
subject to the same levy as other property. 

The taxation of motor vehicles, as we have seen pre¬ 
viously, is entirely in the hands of the state. The high¬ 
way department is charged with the duty of collecting 
the motor vehicle license fee. Fees collected are appor¬ 
tioned as follows: Ten per cent is paid into the state 
treasury to the credit of the general fund. The re¬ 
mainder is paid to the treasurers of the respective coun¬ 
ties from which the fees were collected, “in the ratio in 
which paid as between the various counties .” The county 
treasurer is authorized and directed, however, to pay the 
treasurers of incorporated towns and cities, or cities 
operating under a charter form of government, twenty- 
five per cent of the money received by him from these 
fees on motor vehicles in the cities. This money is 
placed to the credit of the street and alley fund 
and can be used for nothing but street improvements. 
The remainder of this money is divided equally between 
the county road maintenance fund and the state high¬ 
way construction fund of such counties. This regis¬ 
tration fee, except in the case of manufacturers and 
dealers, is in lieu of all other personal property taxes, 
either general or local.** The cities are expressly for¬ 
bidden to collect any tax, license or fee from such vehi¬ 
cles unless it comes decidedly under the police power. 4 * 
The county treasurer is responsible for the collection 
of general property taxes, which include the taxes on 
public utilities and taxes on bank stock, noc only for 
the state and the ccfyinty, but also for all smaller munici- 


* 8 R. L. Okla. 1910, Sec. 7350. 
"S. L. 1919. Ch. 290, Sec. 3. 
4 *IMd. Sec. 12. 



Administrative Control 


639 


treasurers monthly all moneys which he has collected 
pal units within the county. He pays over to local 
on behalf of local governments. 

The state also exercises control over bond issues. The 
attorney-general is ex officio bond commissioner of the 
state of Oklahoma. He prepares “uniform forms” and 
prescribes in detail methods of procedure under the 
laws of the state, in all cases where it is desired to issue 
public securities or bonds in any county, township, 
municipality- or any other political subdivision of the 
state. It is his duty to examine into and pass upon the 
legality of any securities so issued. Such security, when 
declared by the certificate of the attorney-general to 
be issued in accordance with the forms of procedure 
as provided, is incontestable in any court in the state, 
unless suit is brought in a competent court having juris¬ 
diction within thirty days from the date of approval." 
It is not necessary for the city to secure such approval, 
however, where improvements are to be paid for by 
special assessments. 4 * 

STATE CONTROL OVER PUBLIC UTILITIES 

As we have seen before, 4 * the corporation commission 
has complete control over the rates to be charged and 
the services to be given by public utilities, even though the 
cities have their own charters. The granting of 
franchises, however, is in the hands of the city, 44 al¬ 
though the state may exercise “control and regulation” 
of “such use and enjoyment.*’ 45 So far the state, acting 
through the corporation commission, has exercised no 
control over the granting of franchises, but leaves the 

41 R. L. Okla. 1910. Sec. 376-378. 

"City of Lawton vs. West; 33 Okla. 395. 126 Pac. 574. 

"See Chapters VI and XXI. 

“Const. Art. XVIII. Sec. 5 a and b. 

"Const. Art. XVIII. Sec. 7. 



040 


Government of Oklahoma 


pipe, car, express, and telephone companies do not need 
matter entirely to the cities themselves. Railroads, oil- 
franchises, however, since by the constitution they have 
the right to construct and operate tiheir lines “between 
any points in the state.” 48 The commissioner has not, so 
far, attempted to make any changes in the terms of the 
existing franchises, unless the fixing of rates or the es¬ 
tablishment of standards in service has made it nec¬ 
essary to do so. 

The corporation commission has the right to change 
a franchise granted by a city to a corporation, even 
though a part of the franchise involves a contract for 
a specific rate. 47 It may also change service require¬ 
ments as it sees fit, even when such requirements are 
a part of the franchise. 

It is clear, then, that while a city has the right to 
grant franchises, this power is very much limited since 
rates and service conditions, which as a rule form an im¬ 
portant part of most franchises, may be changed at 
any time by the corporation commission. 

STATE CONTROL OVER PUBLIC HEALTH 

The control of the state over public health is treated 
at some length in Chapter XIV, so that it will not be 
necessary here to do more than mention some of the 
principal ways in which this control is exercised. 

By state law, the town board of trustees in each in¬ 
corporated town constitute its board of health; and the 
mayor and common council of a city of the first class 
constitute its board of health. The powers and duties 
of sudh boards are prescribed, and they are required 
to carry out orders of the state board of health. Char- 

"Const. Art. IX, Sec. 2. 

47 Pawhuska vs. Pawhuska Oil & Gas Co. 64 Okla. 214 166 Pae 
1058, 250 U. S. 394. 



Administrative Control 


641 


ever the state board of health considers it necessary 
to take charge of any district in the state infected with 
contagious disease, it may do so; and may enforce rules 
and measures designed to check or suppress the disease. 
It may abate nuisances injurious to public health and may 
make investigations and institute inquiries as to certain 
specified matters related to public health. It has large 
powers to investigate the sanitary conditions of public 
institutions, mines, transportation facilities and places 
of public resort; and it may recommend and prescribe 
measures to remedy unsanitary conditions disclosed by 
such investigations. 

The bureau of venereal diseases established under the 
state board of health has authority to discharge as cured 
persons who have been treated for venereal diseases after 
being confined in penal institutions. The collection of vital 
statistics is supervised by the state commissioner of public 
health, who appoints all local registrars of vital statistics. 

The examination of public water supplies, and the 
right to pass upon sources and plans for proposed water¬ 
works systems, and sewerage disposal or treatment 
plants, are functions of the state board of health, with 
an appeal to the district court. 

It will thus be seen that the state has a great deal 
of direct power, as well as supervisory power, over local 
public health work. 

STATE CONTROL OF THE SCHOOL SYSTEMS OF THE CITIES 

The cities of Oklahoma have no control over their 
school systems in any way, except that cities over five 
thousand nfiay, by charter provision, determine the 
numbers of the school board, their terms of office, the 
time and manner of their election; and may attach ad¬ 
jacent territory outside the city but in the school district 
to the appropriate voting precinct. The school dis- 


642 


Government of Oklahoma 


trict is a separate corporation, and although each city 
of the first class constitutes an independent district, this 
corporation as such is entirely unrelated to the muni¬ 
cipal corporation within whose area it may lie. 

CRITICISMS AND RECOMMENDATIONS IN RESPECT TO ADMIN¬ 
ISTRATIVE CONTROL 

It is undoubtedly true that many if not all of the 
functions mentioned above are of much more than local 
importance, and that consequently the state has a con¬ 
cern in seeing that they are properly performed. Few 
would dispute the fact that the state ought to have some 
degree of control over such matters of general interest 
as health and education, for instance. Such being the 
case, the question may well be asked, is this control 
being exercised in such a way that the interests of the 
state are being protected, and such that the city can 
perform its work to the best advantage ? 

The first thing which attracts attention in a study of 
the control of the state of Oklahoma over these im¬ 
portant activities is the fact that it is being carried on 
by officers, boards and commissions which have no re¬ 
lationship to one another and only an occasional re¬ 
lationship to the city. The result of this situation is, 
that there is no well-organized and well-directed con¬ 
trol over the cities in regard to matters of general im¬ 
portance. By law, many functions are wholly or partly 
withheld from the city, so that it cannot exercise any 
adequate control over them; while the control exercised 
by the state, on the other hand, is haphazard and is 
carried out by agents who too often have no under¬ 
standing of the city’s needs, nor possess adequate know¬ 
ledge on the basis of which to make decisions, nor any 
machinery for securing this knowledge. It may be 
well to criticise the present plan of administrative con¬ 
trol point by point in order to discover, if possible, a 


Administrative Control 643 

system whereby such control might be exercised much more 
effectively. 

CONTROL OVER THE CITY CHARTER 

We have seen that the governor passes upon a city 
charter very much as a ministerial duty, after consulting 
as to its legality with the attorney-general, and that 
the courts, in the last analysis, determine whether or 
not it is in conflict wiUi the constitution and laws of 
the state. Hence it would seem that the vise’ is either 
nearly useless, or else should be entrusted to some body 
that could determine in a final manner, after careful 
examination, whether or not a proposed charter con¬ 
tained any sections conflicting with the constitution or 
the general laws of the state. It might be better, as in 
the state of Washington, for the legislature itself to lay 
down in some detail the powers which a city might 
exercise through the medium of its charter. A still 
more desirable plan, perhaps, would be to give the city 
very large powers, which it should exercise under the 
supervision of a centralized state administrative de¬ 
partment. This solution will be discussed later. The 
result of the provision as it now stands is that the gov¬ 
ernor to all intents and purposes simply shifts to the 
courts the burden of saying what is in conflict with the 
constitution and general laws of the state. It is cer¬ 
tainly contrary to the best principles of representative 
government to entrust to the courts such a very large part 
of the determination of public policy. Under the present 
system, however, this result is inevitable. 

Moreover, as things now stand, the city is continu¬ 
ally uncertain as to its powers. It may be prevented 
from undertaking many functions by fear that its acts 
will be held unconstitutional or illegal by the courts; 
in which case of course, the interests of the citizens suf¬ 
fer. On the other hand, if it does venture upon various 


644 


Government of Oklahoma 


activities it is liable to find itself involved in expen¬ 
sive lawsuits. Further, the position of the courts is far 
from certain on many important points, thus leaving 
the city in the position of not being able to know where 
It stands. 

CONTROL OVER CITY OFFICERS 

While the “attorney-^general’s law” may be of value 
in removing from their positions officers who wilfully 
neglect to perform their duties, who are drunkards, 
Who violate penal statutes, or who commit acts “in¬ 
volving moral turpitude,” it does not serve as an ad¬ 
equate check upon poor and inefficient administration. 
There is no investigating body continually checking the 
work of the city and seeing that it is kept up to the 
standards set forth in state laws. The cities make no 
financial reports to the state or its agents, except those 
made to the excise board; there is no investigation re¬ 
garding their financial condition, and no auditing of 
their accounts by state authorities. Moreover, there is 
no control, except through the power of removal, over 
those city officers who have been held by the courts 
to be responsible for the carrying out of the state laws 
within the city. 

Undoubtedly, however, the law has been of very 
great value in doing away with and preventing absolute 
corruption in municipal and local government, by ac¬ 
ting as a sort of “big stick” to keep the less conscienti¬ 
ous type of city official from wandering too far from 
the right path. 

CONTROL OVER ELECTIONS 

As has been pointed out, most of the cities follow 
the state law quite closely in respect to elections. 4 * This is 

^See page 578-9. 



Administrative Control 


645 


largely due to the fact that the constitution imposed upon 
the legislature the duty of establishing a mandatory prim¬ 
ary election system, which should “provide for the nomin¬ 
ation of all candidates in all elections for State, district, 
county, and municipal officers.” 49 

Few of the cities have considered it worth while, in 
view of this situation, to establish a separate election 
system. Even where a separate election system is pro¬ 
vided, the general law is followed in the most important 
respects. There has been very little dissatisfaction with 
this condition, however, for it works quite smoothly in 
practice. 

FINANCIAL CONTROL 

Financial control over the cities is exercised, as has 
been pointed out, in respect to the city budget, taxa¬ 
tion and bond issues. 50 

There has been more adverse criticism in regard to 
the power of the county excise board over cities, than 
has been made concerning any other phase of state con¬ 
trol. This board, it is felt, is not a proper body to su¬ 
pervise such an important municipal function as budget¬ 
making. The members of the board are trained in 
neither law, accounting nor administration; they have 
no particular knowledge of municipal affairs and they 
are given no power by which to secure information such 
as is necessary to pass upon the budget problems of the 
larger cities, either through the proper kind of reports 
from the cities or through the agency of a specially 
trained expert staff. In a large number of cases these 
Ward members are selected from country districts and 
so are not in sympathy with the city and its work. They 
are elected by the county as a whole for certain specific 

49 Oonst. Art. Ill Sec. 5. 

‘"Const. Art. III. Sec. 5. 



646 


Government of Oklahoma 


duties and therefore cannot be chosen because of fit¬ 
ness for financial supervision over cities. In fact, a small 
city an agricultural county has extremely little to say even 
regarding their election. The claim is often made that 
county officials acting in this board play politics with 
the city budget by reducing it as low as possible, since 
in the mind of the ordinary voter, the ability to cut 
down expenditures in any way is accounted unto an of¬ 
ficial for righteousness. 

The officers of the larger cities feel that, owing to 
their intimate contract with municipal affairs, they have 
a better grasp and more detailed knowledge of the 
city's needs than can possibly be acquired by the county 
excise board. Since they make tiheir plans after care¬ 
ful study and consideration they feel that to have them 
interfered with by such a board, and to be compelled to 
submit small changes in their expenditures to it for ap¬ 
proval is a great injustice. They point out quite cor¬ 
rectly that while this law may have been applicable to 
the eastern part of the state when it first came into the 
Union, as there had previously been no organized local 
government in the Indian Territory, and therefore per¬ 
haps some sort of supervision was necessary, the situation 
has entirely changed within the past few years; and 
the cities in the eastern part of the state, with few ex¬ 
ceptions. now have just as responsible government as 
those in other parts. 

Those who have studied the situation most carefully 
agree that the larger cities of the state should either 
have complete home rule in such matters, or else that 
financial control should be exercised by a state department 
competent to make adequate decisions. Under the de¬ 
cision in Bodine v. Oklahoma City it is possible, of course, 
for a charter city to do away with this control by establish- 


Administrative Control 


647 


ing its own machinery for the making of the budget and 
the levy of taxes. While many believe that some sort of 
control over the finances of small cities should obtain, they 
contend that for the reasons given above the county excise 
board is not the proper authority to exercise it. 

TAXATION 

It has been shown earlier in this chapter that while a 
city, according to law, might possibly have the right 
to set up a separate assessing and taxing agency, yet 
because of the uncertainty of such power, the conflicts 
that might ensue in case the courts narrowed or reversed 
the Bodine decision, and the cost involved, it is not ex¬ 
pedient that it should do so. The result is that the as¬ 
sessment, levy and collection of taxes are in nearly 
every case under the control of the state. Undoubtedly 
there is much to be- said for the centralization of such 
functions in the state, provided that it carries them out 
properly. However, the state of Oklahoma at present 
exercises these functions in a very unsatisfactory man¬ 
ner, so that the cities are suffering. As the city’s mill- 
age levy is limited by the state legislature to six mills, 
unless the charter provides otherwise or unless there is 
a special election for a certain stated purpose, and as 
the assessing is done by elected, untrained and irrespon¬ 
sible county assessors, who, as a rule, assess the prop¬ 
erty at only from one-third to one-half of its true value, 
the cities are finding themselves unable to obtain enough 
money to carry out their functions properly. 

Municipal control over assessing and collecting taxes 
sufficient to iciarry on the city’s enterprises would not be an 
adequate remedy to this situation. Even if the city 
should establish its own tax officers to assess property 
and collect taxes for the support of the municipal gov- 


648 


Government of Oklahoma 


ernment, it would secure little relief, as the expense 
would frequently be so great as to largely offset any 
advantage derived from such a plan. Moreover, if any 
one city could bring about the listing of property with¬ 
in its borders at its real value, the county assessors 
would probably adopt this valuation in making out their 
tax rolls; and since other property in the county and 
the state would be assessed at the usual low valuation, 
this particular community would be paying more than 
its share of the county and state taxes. A better type 
of state control over taxation is undoubtedly preferable 
to local control, with its attendant disadvantages. 

The present method of assessing public utilities is 
also most unsatisfactory in so far as the city is con¬ 
cerned. The fact that the state board of equalization 
is composed of ex officio members necessarily means 
that they are not experienced in the complicated matters 
involved in the valuation and assessment of public 
utilities. Even if they were experts talong this line, 
they have no machinery for determining the value of 
utilities, and therefore it is largely “guessed at,” or 
else the values placed upon them by the corporations 
themselves are accepted. It is the feeling of a good 
many managers of the smaller utilities, and of numerous 
city officials and other persons familiar with the situa¬ 
tion, that in the hearings on valuation, the larger utili¬ 
ties, being more ably represented and having their affairs 
more adequately analyzed, secure a much lower valuation 
relatively than do the smaller ones. Now it happens that 
most of the larger utilities are in the larger cities, the 
very cities which, because of their added responsibili¬ 
ties, need more money than do the smaller ones. 

This extremely unsatisfactory situation can only be 
remedied, so far as the writer can see, by a complete 
Reorganization of the taxing system of the state, accord- 


Administrative Control 


649 


ing to the suggestions in Chapter XXIII. Probably a 
state tax commission should be established, having gen¬ 
eral control over all tax matters. The state itself should 
provide a trained corps of assessors instead of the 
elected county assessors who have charge of the work 
at the present time, or should at least have local assess¬ 
ors under strict administrative control by the tax com¬ 
mission. 

CONTROL OVER FRANCHISES AND UTILITY RATES 

So far, the state has not attempted to exercise any 
control over the granting of franchises, although under 
the constitution it might possibly be able to do so. ai 
Up to the present time there has been no case on this 
point. We have seen, however, that the corporation 
commission has modified franchises granted by a city 
where they were given on condition that a certain con¬ 
tractual rate for service or a certain standard of service 
should be maintained. By changing the terms of the 
franchise in these respects, however, the state virtually 
takes away from its cities the two most essential ele¬ 
ments of an ordinary franchise, leaving to the city only 
the right to grant or withhold a franchise or to fix certain 
conditions for its exercise, such as the specification that all 
electric light poles, as far as possible, shall be located in 
alleys, or other restrictions of like nature. 

There does not seem to be much opposition on the part 
of Oklahoma cities to the regulation of rates and services 
by the corporation commission. Logically, as is pointed 
out in Chapter VI, the state must regulate the majority 
of public utilities. 

STATE CONTROL OVER PUBLIC HEALTH 

The state of Oklahoma, as we have seen, exercises 
control over health in the city in two main ways: by su- 


650 


Government of Oklahoma 


pervision and investigation, and through direct action 
in case of contagious diseases, the inspection of hotels, 
etc. Since the smaller towns and cities cannot well af¬ 
ford to pay competent health authorities, it might be 
well to have the state exercise direct control over the 
health activities of counties and small cities. Or, as 
is suggested in the final chapter of this work, all the 
health work in the county, including the health work 
in the cities, could be taken care of by the county health 
authorities, under the strict control of the state health 
authorities. 

STATE CONTROL OVER EDUCATION 

In a number of ways the complete separation of the 
school system, from the city government has much to 
recommend it. From the viewpoint of municipal fin¬ 
ance, however, it is far from desirable. Good adminis¬ 
tration would seem to demand that the expenditures of 
the city should be viewed by some authority in their 
entirety and in their relation to the total revenue. This, 
of course, is impossible under the present system; nor, 
as things stand, is there any relationship between the 
borrowing power of the city and that of the school dis¬ 
trict. Many schoolmen of the state are strongly opposed 
to the control over the school district budget and levy 
exercised by the county excise board. 

While it is probably best to have the educational 
budget largely made by educational authorities, it might 
be well, at least, to have the budget presented to the 
local government department, which is discussed more in 
detail in the following pages, together with the budget for 
the city’s other expenditures, so that the department it¬ 
self, as well as the general public, could secure a unified 
view of municipal expenditures and receipts. 


Administrative Control 


651 


A PROPOSED LOCAL GOVERNMENT DEPARTMENT 

This brief analysis would seem to indicate not that 
the state is exercising too much control, but that it is 
failing to employ such [control in the most efficient man¬ 
ner. Subjecting the city to a great number of uncon¬ 
nected, inexpert, untrained and casual authorities is 
surely not the best method of controlling municipal 
administration. 

As a substitute for the methods that are used at the 
present time, the writer would suggest that much of 
this control should be centralized in one body having 
expert staffs appointed and paid by the state. 

It would not be expedient, of course, to bring to¬ 
gether under one management all the functions which 
we have discussed; for, as has been seen, some by na¬ 
ture appertain to the state itself and to all its subdivi¬ 
sions, and some particularly to the city. The assess¬ 
ment and collection of taxes, education and the re¬ 
gulation of public utilities belong to the former group. 
We have suggested possibilities of bettering the present 
methods in respect to taxation and education. The 
management of elections may well remain unchanged, 
unless an amendment to the state constitution should 
abolish the provision making it mandatory upon the 
legislature to establish a direct primary system which in¬ 
cludes the nomination of candidates for municipal officers; 
as the present arrangement secures a fair degree of effici¬ 
ency and economy without subjecting the city to any ser¬ 
ious inconvenience. It seems that the regulation of public 
utilities within cities should remain under the corporation 
commission, for reasons already stated. 

Those municipal functions which, in the opinion of 
the writer, ought to be supervised by a single state 
department rather than by several uncoordinated agents 


652 


Government of Oklahoma 


and agencies which now have charge of them are: the 
organization of the city government and the framing 
of the charter; control over city officials in respect to 
their administrative efficiency; health and sanitation; 
some supervision of public works and municipally 
owned public utilities; and municipal finance. This 
same control should probably extend to tjhe county. We 
cannot, however, discuss this phase of the problem here. 

All of the functions named above are largely local in 
scope, and yet are intimately connected with the wel¬ 
fare of the entire state; all are more or less related to 
one another; all are pre-eminently activities the control 
of which demands administrative flexibility combined 
with a high degree of expertness—qualities best sup¬ 
plied by an administrative department^ 

Such a department should be headed by a well paid sec¬ 
retary appointed by the governor, who should be supplied 
with an expert staff of accountants, statisticians, lawyers, 
physicians who have specialized in public health and sani¬ 
tation, and engineers. 

The functions of this department should be: 

1. To pass upon a proposed charter, and to super¬ 
vise the exercise of municipal powers under the charter. 
The city should be restricted by law as little as pos¬ 
sible in respect to matters placed under the charge of the 
department, thus permitting a much more flexible admin¬ 
istrative control than can exist under present conditions. 
This would do away with the vise’ of charters by the govern¬ 
or and to a large extent with the determination of municipal 
powers by the courts. The department could pass upon the 
exercise of unusual municipal powers largely on the 
grounds of expediency. Such an arrangement would 
make it possible for cities to enjoy a much greater degree of 
freedom than they have at present, as many details now 
fixed by law in a hard and fast manner could be left 


Administrative Control 


663 


tc the discretion of the board. This means that each 
case would be decided on its merits, without the ham¬ 
pering influence of rigid laws. 

2. Through requiring reports, examining finances, 
and providing for inspection, the department could well 
cheek up the administrative efficiency of municipal officials. 
In case of gross inefficiency, torts or abuse of power, 
it could report to the attorney-general, who would be 
empowered to take the proper kind of action. 

3. It should have the same kind of control over sewage 
disposal and waterworks systems as the state board of 
health possesses at the present time. 

4. This department should have general financial super¬ 
vision over cities. It should approve the budget, seeing 
particularly that all mandatory amounts are included. 
It should not, however, have power to increase or de¬ 
crease specific items. In case the total expenditures 
asked for in the budget were in excess of the legal limi¬ 
tation, the approval of this department should be secured. 

The department should act as the auditing authority for 
all municipalities, and should require reports from them 
according to forms prescribed by itself. 

Such a department might well be given some control over 
the borrowing policy of the city. This control should par¬ 
ticularly have to do with sanctioning plans of undertak¬ 
ings for which the cities are borrowing, such as water¬ 
works systems, electric light plants, gas plants, sewer 
systems, etc. A bureau in the department should pass upon 
the legality of a proposed bond-issue, as the attorney- 
general does at present. The department should also approve 
the methods of providing sinking, depreciation, and re¬ 
serve funds. Many small cities, in particular, vote 
bonds for public utilities without any adequate plans, 
with no knowledge of costs, and with little conception 
of the utility as a business, with the result that they 


654 


Government of Oklahoma 


soon find themselves unable to carry on such enterprises 
successfully. The mere fact that the people vote for 
a bond issue is no guarantee that the undertaking will 
be successful. If all issues for such purposes were first 
approved by this department, before being voted upon by 
the people, there would be a reasonable certainty that 
the undertaking was at least started on a firm basis. 

5. This department should act in an advisory capacity to 
cities and their officials. In a short time it would ac¬ 
cumulate a reservoir of invaluable information. Its 
trained staffs could interpret this information for the 
cities and so make it usable. 

Through such a department, in the opinion of the writer, 
an expert administrative regulation would take the 
place of the uncoordinated and haphazard authorities 
which now control the cities of the state; and the cities 
would enjoy a much greater degree of real freedom and 
genuine home rule than is possible under the present system. 


CHAPTER XXIII. 


SUMMARY AND RECOMMENDATIONS 

From our examination of the government and public 
law of Oklahoma we have found certain impediments 
to the efficient functioning of the state government and 
administration. If our former analysis is correct these 
are: 

Excessive constitutionalism. 

Popular election of many state officers. 

An incorrect relationship of the executive to the legisla¬ 
ture. 

Wrong administrative organization in the state govern¬ 
ment. 

Decentralization in local government without any ade¬ 
quate administrative supervision. 

No well coordinated administrative supervision of muni¬ 
cipal government. 

Lack of civil service methods. 

A decentralized judicial system. 

A well coordinated plan of state, local and municipal 
administration must correct these faults and substitute a 
workable, responsible, and efficient state government. 
The present faults will be summarized here and methods 
of doing away with them will be discussed. 

CONSTITUTIONAL CHANGES 

A long and detailed constitution, filled with limita¬ 
tions upon the legislature as well as many general limita¬ 
tions, and loaded with statutory provisions, makes the 
government inflexible. No mater how unsatisfactory it 
may be, the governmental organization of Oklahoma 
cannot be changed by the legislature unless the change 


656 Government of Oklahoma 

is ratified by popular vote; and as the people are not 
interested in public administration, an intelligent popu¬ 
lar vote in regard to such organization is a practical 
impossibility. Detailed constitutional provisions and 
limitations throw upon the courts the heavy burden of 
determining whether legislative enactments are or are not 
in harmony with the constitution. Moreover, since the 
courts do not give declaratory judgments but merely 
decide cases coming before them in the regular way, 
it is necessary at present for someone to break a law 
before the courts will pass upon its constitutionality. 
No argument is needed to show how this situation tends 
to destroy respect for law. A far more simple constitu¬ 
tion establishing merely the general outlines of the gov¬ 
ernment and entrusting the larger part of organization 
to responsible legislative and executive departments 
would go a long way toward remedying the difficul¬ 
ties and confusion which exist at present in our state 
government. Few limitations upon the power of the 
legislature, and no statutory law whatever, should be 
included in the constitution. 

POPULAR ELECTION OF STATE OFFICERS. 

We have seen that the governor and practically all 
the chief administrative and judicial officers of the 
state are elected by the people. Those who believe that 
such officers should be chosen in this manner maintain 
that since they are elected by the people they will be 
responsible and accountable to them. The theory of 
accountability and responsibility due to popular elec¬ 
tion has been questioned by many political scientists; 
and certainly in Oklahoma it has not proved sound. In 
the first place, the most important of these officers, in¬ 
cluding the governor and the auditor, cannot hold of- 


Summary and Recommendations 657 

fice for two successive terms. Fear of failure to be re¬ 
elected, then, does not influence their actions. More¬ 
over, the people cannot know or test the qualifications 
of those applying for office; so that the man elected 
is too often not the best qualified candidate, but the 
most skilled politician. 

A further argument against the theory of respon¬ 
sibility to the people is the fact that in general the 
work of the elected state officers is not the determina¬ 
tion of policy, but merely administration. While they 
run for office on platforms involving large public poli¬ 
cies, they have, with the exception of the governor, 
practically no control over legislation. The people 
cannot, therefore, hold them responsible for the carry¬ 
ing out of the policies which they advocated during 
their campaigns. Their duties consist of technical ad¬ 
ministrative or ministerial work, and the people have 
no way of checking them up in such work. 

Finally, the people have established no agency, other 
than the legislature sitting as a court of impeachment, to 
hold these officers responsible. Anyone,who has given 
the slightest study to government knows that such con¬ 
trol amounts to absolutely nothing in checking up poor 
administration, and to almost nothing even in punishing 
offenses involving moral turpitude. The twelve principal 
state officers are not responsible to the governor, for they 
are his colleagues. The people elect a large group of 
administrative officials, therefore, who are practically 
irresponsible. 

The remedy for this situation would seem to be a 
state organization in which all administrative officers 
are appointed by the governor. The details of such an or¬ 
ganization have been discussed elsewhere . 1 


'See Chapter TV. State Administrative System. 



658 


Government of Oklahoma 


CHANGING THE RELATIONSHIP OF THE EXECUTIVE TO THE 
LEGISLATURE. 

Perhaps the greatest weakness in our present state 
organization is the unsatisfactory relationship between 
the executive and the legislative departments. The 
problems of government today demand much study 
based upon a wide knowledge of administrative pro¬ 
cesses, sound economic relationships and public law. Such 
expert knowledge can be possessed by only a few, who 
should be leaders. If American political experience has 
proved anything, it is that expert leadership is seldom 
found in the legislature, as now constituted. The viewpoint 
of members is too narrow, their interests are too local, or 
too special, their ability to obtain information too limited, 
to make them leaders in political thought. This situation 
cannot be remedied until the heads of all important state de¬ 
partments are selected from among the members of the 
legislature, thus making seats in that body attractive 
to the ablest men. 

While the people are demanding that the executive 
be their responsible leader in respect to public policy, 
they have at the present time no method of holding 
him responsible. They cannot hold him responsible 
for policies which he advocated during his campaign, 
since the carrying out of these policies requires the fa¬ 
vorable action of the legislature. No method other than 
subterranean is provided by which a governor who has been 
elected by the state at large on certain polices can present 
his policies to the legislature in the form of well drawn up 
laws, push these laws in the legislature, or demand a “show¬ 
down” in case the legislature will not enact them. Un¬ 
less the governor is provided with some way by which 
he may definitely initiate laws, fight for them in the 


Summary and Recommendations 


659 


legislature, and resign or call a new election in case 
the legislature refuses to pass them, he cannot be con¬ 
sidered to be responsible to the people for the policies 
he advocated when asking the people for election. 

Either of two methods might be a solution to the pre¬ 
sent difficulty. The executive might still be elected, 
but he and the administrative officers under him might 
have seats in the legislature with power to initiate legis¬ 
lation and to vote. In case of a fundamental disagree¬ 
ment between the executive and the legislature in re¬ 
spect to policy, he might be given the privilege of resign¬ 
ing or of dissolving the legislature and calling a new 
election. If sufficient of his opponents were elected to 
form a majority, he would be forced to resign and a 
new governor would be elected. In case the election 
were favorable to him, he would continue in office and 
be able to carry out his policy. In this way the gover¬ 
nor would become responsible to the people for policies. 

The second method would be to have the chief exe¬ 
cutive selected from the membership of the legislature, 
perhaps by an elected governor, and to let him form 
his cabinet from the members of the legislature. He 
would be made responsible for the initiation of policy; 
much as at the present time the governor is by law, 
if not in reality, responsible for the initiation of the 
budget. He and his cabinet would be an integral part 
of the legislative body. In case of disagreement be¬ 
tween the executive and the legislative body, the execu¬ 
tive could either resign or call a new election for mem¬ 
bers of the legislature. 

Under either of these methods the terms of legislators 
must be much longer than two years, in order to spare 


660 


Government of Oklahoma 


the state an unduly large number of elections, and in 
order to make it worth while for the best men to enter 
political life. 

While, perhaps, we are not ready at present for such 
a change as the second method involves, yet in many ways 
this would be an improvement upon the former system. 
Since the chief executive would not be under obligations to 
a great number of his friends who helped elect him, he would 
be much freer in making his appointments than he 
could be otherwise. As he would be a member of the 
legislative body itself, the legislature would be far more 
likely to cooperate with him than it would with an 
outsider. The practice of choosing an executive and 
the heads of all important departments from the legis¬ 
lature would make seats in that body much more sought 
after than they now are, thus improving the quality 
of the legislature. As a rule, only legislators of in¬ 
fluence and experience in public business would be 
chosen for the important executive positions. Further, the 
legislature would be a potent agency in controlling the 
governor and in making him responsible. 

THE REORGANIZATION OF STATE ADMINISTRATION. 

We have seen that at present administration in Okla¬ 
homa is carried on by thirteen elected constitutional 
officers, and by about sixty-five other officers, boards, 
commissioners and departments; that the present admin¬ 
istrative system is irresponsible and does not function 
harmoniously; that the functions of government are 
distributed in an illogical way among a great variety 
of nearly independent officers, boards and commissions; 
that as a consequence the state government is both 
expensive and inefficient. 

Any attempt at reorganization should involve some 
suc/h plan as the following: 


Summary and Recommendations 661 

a. An executive department with a chief executive 
as the responsible head. 

b. A staff of highly trained technical advisors en¬ 
gaged in collecting information, making suggestions 
and working out the details of policy for the admin¬ 
istration. 

c A civil service and recording department which 
would give examinations for all positions which do not 
require administrative skill, or such special qualifications 
as cannot readily be determined by examination. 

d. A group of departments to carry out what the 
New York Bureau of Municipal Research calls the 
“proprietary functions”; viz., finance, construction and 
care of property, furnishing legal opinions, recording, 
etc. 

e. A group of departments charged with carrying 
on the services which the state performs for the public, 
such as education, health, care of special classes, fur¬ 
thering agriculture, promoting and regulating business 
and commerce, looking after the interests of labor, and 
preserving public peace and order. 

f. A department of local government to supervise 
those phases of county and city administration in which 
the state has an especial interest. 

Under such a plan, instead of some seventy-eight 
officers, boards, commissions, etc., which the state 
now has, there would be a chief executive having under 
his control, through the power of appointment and re¬ 
moval, the heads of some dozen departments, among 
which would be grouped all of the different adminis¬ 
trative functions. 

The plan here advocated is not new or untried. During 
the past decade there have been several reorganizations 


662 


Government of Oklahoma 


in state administration . 2 Without exception they have 
shown an inclination away from the theory 
of a large number of elected administrative officers, 
and toward a rather small number’ of appointed heads 
of state administrative departments. There has been 
a strong tendency also to concentrate most of the state 
activities under the control of these few officers, in¬ 
stead of having the many unrelated, unsupervised 
boards, commissions and officers which formerly obtained. 

REORGANIZATION OF COUNTY GOVERNMENT 

We have seen that county government in Oklahoma 
is organized by state law, and all its powers, duties 
and responsibilities are defined minutely by state law. 
It is, therefore, completely under the legal control of 
the state. In carrying out the functions imposed by 
state law, however, it is subject to very little centralized 
control. The county officers are not appointed by the 
state but are elected by the people in the county. The 
county commissioners do not form a board of control 
with supervision over the work of all the other county 
officers, but are limited to the carrying out of their 
own specific duties. Neither are they subject to ef¬ 
fective state administrative control, although the county 
is performing various functions of much wider than 
county concern. 

Two important steps should be taken in the reorgan¬ 
ization of county government. First, there should be 
a redistribution of functions, as between the county 
and the state, and other subdivisions, and, second, the 
county itself should be reorganized. 

*Such reorganizations have occurred in Illinois, Idaho, Nebraska, 
Massachusetts, Washington, Ohio, California and Mayland. Some 
twelve or thirteen other states have proposed plans for administrative 
reorganization or have instituted inquiries concerning it. 



Summary and Recommendations 


663 


The need of a uniform policy in assessing taxes 
throughout the state indicates that the duties of the 
county assessor should be transferred to a state de¬ 
partment of finance. Judges, county attorneys, and 
sheriffs are engaged almost exclusively in performing 
state functions which should be administered with an 
even hand throughout the state. There is no excuse 
for the law's being enforced in different ways in dif¬ 
ferent counties of the state. The function of the county 
attorney as legal advisor to the county might possibly 
warrant his appointment by the county commissioners, 
subject to the approval of the state department of 
justice. There is no inherent reason, however, why a 
state-appointed county attorney might not perform the 
legal functions for the county quite as well as an of¬ 
ficial appointed by the county itself. Court clerks, of 
course, should be appointed by the courts which they 
serve. Nothing is gained in any way by electing such 
officials. It seems advisable, also, to place “indoor” 
poor relief in the hands of the state rather than the 
county, for the reason that there are so few who need 
it in the average county that proper facilities cannot 
be provided or the cost is excessive. The rapid develop¬ 
ment of the automobile and motor truck, with the con¬ 
sequent need for well coordinated, well paved, and 
well cared for systems of roads, seems to indicate that 
all main highways should be entirely under the control 
of the state rather than the county. 

The functions of the excise board should be given 
over to the state department of finance. The township 
functions in regard to health and roads should (for 
the reasons discussed in the chapter on local govern¬ 
ment) be transferred to the county. The county, rather 
than the district, should probably be made the unit of 
school administration. 


664 Government of Oklahoma 

The county would then be reduced to a division of 
government having only six main functions, which might 
well be entrusted to six departments, viz: finance, pub¬ 
lic welfare, public works, public records, agriculture, 
and education. 

There are three ways in which the heads of these 
six departments might be chosen. They might be 
chosen by the governor and so be directly under the 
control of the state, they might be elected by the peo¬ 
ple, or they might be chosen by a manager who would 
serve under an elected board of county commissioners 
The first method probably would be impracticable at 
the present time. The second method would subject 
the county administration to most of the weaknesses 
which it now has, and would make it impossible to se¬ 
cure competent persons to man these important depart¬ 
ments. It seems more advisable, therefore, to have the 
people elect a board of county commissioners, three 
in number, selected from the county as a whole, who 
should be the legally responsible body for the county 
government. They should be unpaid and should have 
no powers at all over administration. A well qualified 
and well paid county manager, selected by the com 
missioners, should be responsible for the conduct of all 
administration in the county. He should have the right 
to appoint and remove the heads of the various depart¬ 
ments. He should prepare the county budget and sub¬ 
mit it to the commissioners for approval. 

The local government department through its various 
staffs should exercise control over the county administra¬ 
tion. This control should include the requiring of reports, 
and the making of investigations, together with supervi¬ 
sion, advice, and direct aid from the central state de¬ 
partment in case of necessity. Such a system would 
furnish the counties of Oklahoma with ah effective 


Summary and Recommendations 


665 


organization for carrying out their functions, and at the 
same time would give the state sufficient control to 
insure efficient and honest administration. 

ADMINISTRATIVE SUPERVISION OF MUNICIPALITIES. 

The present relationship of the municipality to the 
state is unsatisfactory both in respect to those cities 
which have ad<ppted their own characters and those 
organized under the state law. The state law organizing 
towns of less than 2000 population, and also cities of the 
first class which have not adopted their own. charters, is 
highly unsatisfactory in that it prescribes rigidly the form 
of organization which they must adopt, namely the mayor- 
council form for cities, and a very inefficient type of com¬ 
mission government for towns. If towns and villages were 
able to adopt the manager plan of government they would 
be able to carry on tiheir affairs much more effectively 
than they can do at present. It would seem better to 
give them more powers, also, than they now enjoy, 
but have them exercise their powers under an ade¬ 
quate administrative control. The control over munici¬ 
pal finance at present given to the excise board should 
be taken over by the local government department. 

In the study of the legal relationship of the city 

to the state, we saw that the home rule vity is in a 
far from satisfactory position. It does not know its 
powers, duties or responsibilities. As city charters 

are usually framed by persons without a wide know¬ 
ledge of laws and court decisions governing the re¬ 
lationship of the city to the state, such charters, 

particularly those of small places which do not have 
adequate legal advice, are usually filled with provi¬ 
sions which conflict with the constitution or general 
laws of the state. These conflicts are not examined 
into with care by the governor and so rectified, but re- 


666 


Government of Oklahoma 


main in the charter, thus supplying a fertile field for 
future litigation. Further, the courts have never passed 
upon several important powers, with the result that the 
city does not know where it stands. 

A possible remedy for this situation might be for 
the legislature, in view of the questions which have 
arisen in all the so-called home-rule states and in view 
of the court decisions laid down in these various juris¬ 
dictions, to pass a law defining with'some exactness 
the powers of cities and their position in case of con¬ 
flict between them and various kinds of state laws. For 
instance, the legislature might well say that a city’s pass¬ 
ing upon its own budget and making its own levy was a 
purely municipal function, but that the general state 
law should govern in respect to the classification of 
property for taxation, the assessment of property and 
the collection and distribution of taxes. 

Perhaps an even better solution of the problem would 
be to so change the constitution as to give the city all 
power except that expressly taken away from it, and 
then let it carry on its functions under strict administra¬ 
tive control, particularly those functions in which the state 
has a very definite interest. It is far from good policy 
to try to determine by law the manner in whicih all 
these municipal functions shall be carried on, for condi¬ 
tions differ greatly in the various cities of the state. 
The local government department, as has been pointed out 
before, should have administrative control in respect to 
all those matters in which the state has a definite in¬ 
terest. Such control would keep the city from the 
legal tangles in which it is involved at present, would 
insure that those functions in which the state has an 
interest were taken care of properly, and would do 
away with the uncoordinated, ineffective control which 
is exercised over the city at the present time. 


Summary and Recommendation 


667 


JUDICIAL REFORMS. 

Oklahoma's present judicial system, which is scattered 
and disconnected, should be reorganized by the consolida¬ 
tion of all the courts into one general court of judicature. 
This court should be invested with the judicial function, or 
the adjudication of controversies brought before the court 
in the form of cases; the administrative function, or the 
keeping of the administration of justice efficient, through 
the supervision and direction of the court system; and the 
rule making function, which should be given to the court 
exclusively, instead of being shared with the legislature as 
at present. 

CIVIL SERVICE. 

In order to eliminate the spoils system which now ex¬ 
ists in the governments of state, county and city, examina¬ 
tions by a state civil service commission should be given 
to all candidates for purely clerical, technical, or minor 
administrative positions. The state civil service commission 
should be organized as a personnel agency, determining 
according to the latest and most approved methods the 
competence of candidates for such positions. 

CONCLUSIONS. 

The recommendations made in the preceding chapters 
would, it is well understood, involve fundamental changes 
in both our constitution and laws. Some such changes, how¬ 
ever, seem to the authors inevitable if the state is to have 
a scientific, flexible and progressive government. Since 
these recommendations are based upon a through study of 
the governmental system of Oklahoma, have been tried 
successfully in other states, or have been advocated by the 
foremost political scientists and the most practical students 


668 


Government of Oklahoma 


of other state systems, it is the hope of the authors that 
even if not all adopted, they will form a basis for a wide 
and intelligent discussion of the reorganization of state gov¬ 
ernment. 


INDEX 









Index 


671 


INDEX—THE GOVERNMENT OF OKLAHOMA. 

Administration, State, suggested changes, 148-157,660-662 

Governor’s powers over .. . .,,..86-106 

Administrative boards . 141-143 

Affairs, Board of .... ... 143-146 

Agriculture, Board of... ....... 438-440 

Education in . 452-453 

Animal quarantine, etc ______ 440-442 

Anti-trust law..... . 402 

Appropriations, provisions governing... 387-390 

Attorney General .. ... 89-90, 133-135 

Attorney General’s law ... .135, 532-534, 628-629 

Auditor _ 129-133 

Bank Commissioner..... . 406 

Banking, control over . 405-409 

State Department of... ........406-409 

Blind, care of ________508-509 

Blue sky law.. _______ . 402-405 

Boards, administrative ......„... .141-143 

Board of Affairs _______ _.....143-146 

Budget, law of 1919.._ 390-395 

Budget System, criticism .. 395-400 

Business, relation of ......... .401-411 

Charities and Corrections, Commissioner of. 511-512 

Children’s Code Commission ... T . . . 497-498 

Child labor.. . ...478-482 

Cities, see municipal government, 

under legislative organization . 555-563 

home rule..... . 563-564 

City, legal control of State over, summary . .619-625 

Cities, organization, control over . .626-628 

officers, control over. . 628-630 































672 


Government 


election, control over-.---.630-632 

finances, control over...632-639 

utilities, control over.-...639-640 

criticism of control___642-650, 665-667 

Constitution, general principles... 9-12 

direct control in... 13-15 

control of business in.....- 15-17 

protection of labor in....-.. 17-18 

municipal control in..18, 20-23 

amending . 23-25 

criticism of.....-- -- 25-34 

suggested changes. 655-662 

Corporation Commission, organization.189-190 

powers and jurisdiction.190-225 

appeals from orders.....:.226-228 

criticisms and recommendations..228-229 

control over utilities in cities...199-204, 605-611 

County government. 513-545 

officers _ 516 

finance . 519-522 

County government, proposed reorganization,...662-665 

Courts, see Judiciary 

Justice of the Peace___ 158-164 

County ____-.168-169 

District __ 169-171 

Superior _ 171 

Supreme .. 171-175 

municipal ____ __175-176, 587-603 

criticisms and recommendations......176-186 

Deaf, care of..-----. 508 

Debt, State, constitutional provisions...376-378 

State, present situation... 378-386 

Education, Survey Commission....498-499 

criticism of—___ 499-503 



































Index 


673 


compulsory .475-476 

of negroes.483-488 

Election System, criticisms.269-272 

general provisions..230-232 

Elections, primary._.235-257 

general . 257-269 

municipal.269, 577-580 

Examiner and Inspector.137-140 

Excise Board, county...520-521, 632-635, 663 

Executive officials. 71-73 

and courts. 73-74 

chief, see governor 

criticisms and recommendations.. 118-125 

relation to legislature.658-660 

Farm and industrial council.448, 449 

Financial system, see: 

Revenue 

Taxation 

Funds 

Debt 

Budget 

Appropriation 
Excise Board 


Finance, municipal, control over.632-635 

Fire Marshal.-. 141 

Funds, general..-.338-339 

revolving . 339-342 

working capital revolving.342-344 

pension .-.344-353 

guaranty .353-355 

home loan.-.355-360 

from license fees, etc. 361 

free scholarship.361-362 

text book.. 362 




















































674 


Government 


agency .362-370 

highway construction... 363 

highway, federal aid.368-369 

federal aid. .. >..363-370 

agricultural and vocational.364-367 

maternity and infant welfare . 370 

federal aid to highways.368-399 

endowment .370-375 

educational . ..'..370-374 

common school. 371-372 

union graded school . 372 

new college. .....372-373 

Section 13, ..373-374 

public building ... 374-375 

Geological Commission and Survey ..147-148 

Governor, see Executive 

qualifications ...~. 74, 

impeachment . 75-78 

powers in re legislation. 79-86 

r * veto power . 82-84, Appendix A 

budgetary powers . 84 

powers over administration . . 86-108 

special powers.106-118 

power over militia . 106-110 

pardon and parole power. 110-116 

Grandfather clause . . .. .231, 291, 301 

Health, Board of.;.416-426 

High schools . ._•.^.472-474 

Highways, State........... . 456-458 

federal aid... .....459-460 

Highway administration, general •criticism...........460-465 

department .....;.. 455 


































Index 


675 


History of Oklahoma . .. 

Home rule in constitution.. ... 

legislation . .... 

problems .. . .... 

charter procedure . 

organization ____ 

primary election laws .. 

election system.... ... 

initiative and referendum . 

and suffrage qualifications... 


1-9 

.568-571 

.571-578 

573-619 

.574-576 

.576-577 

.577-578 

578 

.578-579 

.579-580 


and taxation. 580-585 

and bond issues. 585-586 

courts and penalties.537-603 

public utility regulation .....603-611, 639-640 

education . 611-613 

health administration .. 613-614 

highways and pavements..614-616 

fire departments. .....616-617 

labor regulation. 618-619 

Impeachment.75-77, and Appendix B 

Initiative and Referendum bills voted on.289-302 

general results... 302-304 

Initiative, procedure.....275-281, 285-289 


Insane and feeble minded. 
Insurance, regulation of— 

Issues Commission . 

Jury system . 

Justice of the Peace . 

Labor, child...... . 

Labor, regulation of _ 

^ Department of .. 

Commissioner of .:. 

strikes, etc . 

laws protecting.. 


Land Office, Commissioners of._ 


...504-505 

...409-411 

403 

164-168 

.158-164 

..478-482 

.411-414 

.411-413 

411 

412 

413 
146 


















































676 


Government 


Legislature, powers and restrictions. 39-45 

committees. 46-48 

procedure . i . 49-55 

impeachment power... 55-57 

criticism . 58-65 

suggested reorganization.—>. 65-70 

relation to Governor.658-660 

Lieutenant Governor. 78-79 

Local government department, proposed_650-654, 665-667 

Market Commission...-..449-450 

Market associations, etc.. .._ 450-452 

Militia .106-110 

Municipal government, towns,.551-555 

cities under legislative orgnizations....555-563 

home rule cities.-.563-654 

powers of ...... ..565-654 

Negroes, schools for. .....483-488 

Oil and gas, conservation of. 219-224 

Oklahoma, history of. 1-9 

Pardon and parole. 110-116 

Penitentiary . 506 

Pension funds. ....344-353 

firemen’s ..... 344-346 

teachers’ . 346-353 

Pensions, State, to Confederate veterans... 510 

Primary elections. 235-257 

Public Health, State Board 

in county .427-431 

in city.,.431-432 

general Criticism. 433-437 * 

Public utilities in home rule cities.603-611 

Rate fixing by Corporation Commission,. 

206-212, 214-215, 607-609 

Referendum, procedure.281-289 

bills voted on. 289-302 











































Index 


677 


results .302-304 

Reformatory and training schools.506-507 

Registration of voters.232-235 

Revenue, general provisions.305-313 

Revenues from taxation. 313-333 

other sources. 333 

custody and disbursement.334-337 

Schools, see Education 

School districts.467-471 


Schools, public, curriculum... . 472-474 

School finance . 361-367, 490-495 


Schools, special and higher . 

teachers .-. 

text books .... 

Secretary of State . 

Sheppard-Towner bill . 

Soldiers’ homes .v. 

Taxation, in home rule cities . 

general provisions . 

criticism of system ... 

Taxes, general property . 

express company . 

bank stock . 

corporation .. 

public utility 

mortgage . 

gasoline .. 

gross production.. 

income . 

inheritance . 


...496-497 
...495-496 
...488-490 
...128-129 
...370, 418 
...509-510 
...580-585 
...305-313 
...332-333 
...313-318 

318 
...318-319 

319 
...320-322 

322 

...322-323 

...323-324 


transportation and transmission.... 
corporation license- 

motor vehicle. 

Fire Marshal. 

foreign insurance companies.. 


. ...324-326 

.326-328 

....328-329 

...329-330 
.330-331 
331 
.331-332 






























































678 


Government 


Teachers ...,....495-496 

Textbooks . .488-490 

Textbook Commission...488-490, 501 

Towns, organization and government of-- 551-555 

Township .....-.-..5454347 

Treasurer_ 135-136 

Tuberculosis Sanitoria.. 426-427 

Utilities, public, in home rule cities.. 603-611 

Venereal disease, control of...- - 419-420 

Voters, registration of...-....232-235 

Voting, see election system 

in absence from home_231-232 

Workmen’s Compensation Law.413-414 


, • 
































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